Game Industry RoundtableGame Industry Roundtable

Lessons from Video Game Litigation: Lessons from Video Game Litigation:

Enforcing Rights and Avoiding RisksEnforcing Rights and Avoiding Risks Susan Fahringer

Will Rava

Fine ArtFine Art

Social CommentarySocial Commentary

Educational ToolEducational Tool

MedicineMedicine

AgendaAgenda

Your IP (what you have, what to do with it) Your content Your EULA Risks from customers and other third parties Working with (and dealing with) the Government

Your IPYour IP

User interface Game play Plot, characters Music Name Code Packaging A-V aspects of game And more . . .

Key IP RightsKey IP Rights

Copyright Trademark Patent Trade secret Trade dress

Know What You OwnKnow What You Own

Initial survey (at least key games, key rights)

Periodic audits

Preserve (and Clarify) Preserve (and Clarify) What You OwnWhat You Own

Registration of federal TMs, copyrights Patent protection / your patent strategy Make reasonable efforts (at least) to protect your

trade secrets Adopt the right contract terms (with employees,

independent contractors, anyone exposed to company confidential information; licenses; etc.): Be explicit as to who owns what

Know What You're UsingKnow What You're Using

Audits of license agreements

Company policy/awareness not to use others' IP Employment agreements Independent contractor agreements Sales/marketing materials

Know What Others Are Doing Know What Others Are Doing With Your IPWith Your IP

Monitor Infringement Use your customers & distribution chain

Make it easy to report infringement Proactively look for infringement Educate customs officials to help stop

importation

Enforcing Your RightsEnforcing Your Rights

Identify the problem What's your goal? Align your strategy with your goals Mind your limitations

(and tell your counsel what they are) Choose your target Choose your approach

Your ContentYour Content

Others' IP Torts Publicity

Your Content – Others' IPYour Content – Others' IP

Your Content – Others' IPYour Content – Others' IP

Trademarks Products (trademarks, trade dress, design) Music/Audio People (name, image, likeness) Sports issues (leagues, coaches, venues, etc.)

Your Content – Others' IPYour Content – Others' IP

Where you use it: In game In marketing, advertising

Your Content – Others' IPYour Content – Others' IP

Practical Considerations: Exposure Type of use Likely cost Term Termination rights

Your Content – TortsYour Content – Torts

High school shooting cases Sanders v. Acclaim Entertainment, Inc. James v. Meow Media Wilson v. Midway Games, Inc.

Your Content – Your Content – Publicity (and more)Publicity (and more)

Your EULAYour EULA

Your EULAYour EULA

Your EULAYour EULA

Your EULAYour EULA

Your EULAYour EULA

Conspicuousness Severability Fairness Dispute resolution Privacy and security Property rights

Risks from OthersRisks from Others

Indirect infringement

Contributory infringement

Inducing infringement

Vicarious infringement

Minimizing RisksMinimizing Risks

Make it easy to report violations Make it easy to resolve infringement accusations

(EULA) Don't turn a blind eye to infringement, especially

if it benefits you

Privacy & Security IssuesPrivacy & Security Issues

Customer terms of use (limits on liability, arbitration clause, etc.)

Reasonable privacy policy Plan ahead to deal with a breach (incident

response team) Most common allegation: negligence

Other IssuesOther Issues

Subpoenas (process to respond)

Access issues (breach of contract issues)

Property rights issues (follow EULA and make it terminable at will)

GovernmentGovernment

Content regulation Crimes Taxation Government as your friend

Government – Content RegulationGovernment – Content RegulationStricken Pending

Washington Federal (x3)

Missouri Delaware

Indiana Massachusetts

Michigan New York

California North Carolina

Illinois

Minnesota

Louisiana

Oklahoma

Government – CrimesGovernment – Crimes

Property crimes Child pornography Crimes against people/avatars Financial crimes

Government – TaxationGovernment – Taxation

Government Can Be Your Friend Government Can Be Your Friend

Governmental actors can help you by: Protecting and enforcing your IP rights Prosecuting crimes Passing favorable legislation (and defeating bad

legislation)

Questions?Questions?