Editor's Choice

Editor's Choice
Send In the Lawyers

Dave Cook | 16 Mar 2010 12:29
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No stranger to swinging the legal hammer, Marvel saw red in 2004 when its noticed character skins that resembled its own creations in Cryptic Studios' City of Heroes. Marvel's lawsuit suggested that the developer, along with publisher NCsoft, actively promoted the creation of trademark-infringing avatars, calling for the game to be shut down completely. The key difference between this and the LittleBigPlanet example is that game administrators NC Interactive foresaw this very issue and drafted an airtight EULA that held individual players accountable for actively infringing copyright.

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This particular case is a testament to the fact that trademark law as it stands can often be ill-equipped to deal with the rapidly changing nature of the games industry. Despite its solid EULA, Cryptic Studios was held liable for infringing trademarks by supplying the character creation kit to its users, rather than the creators of the offending material itself. The case ended in an out-of-court settlement the following year, with Cryptic Studios retaining the right to run City of Heroes freely. But the whole ordeal raises a host of questions over who is actually responsible when things go wrong. When user-created content is a core element of a game, attempting to satisfy a fan base, publisher and any number of IP owners makes for a tricky balancing act.

Legal Minefields

As game developers embrace the notion of social networks, online-enabled play modes and motion-controlled gaming, the risk of legal backlash will likely increase. One wonders where the next pivotal victory or loss for the industry will come from. Will we see the family of the first player to have a heart attack while playing Wii Fit attempt to sue Nintendo? Or perhaps players will attempt to sue developer Zynga after hackers gain access to a gold mine of sensitive player data via FarmVille?

Due to the speed with which gaming evolves, legislation will never be able to regulate the industry effectively without tapping into the expertise of its key players. Current statutes concerning game-related issues in both the U.K. and U.S. are typically blanket documents that cover a wide range of technical laws. Without a tight, clearly-scripted bill relating solely to the games industry, legal standards will always prove ineffective and outdated.

While many gamers and developers like to think that gaming is a mature industry, it still has a lot to learn as it explores new avenues and casts its net wider and further than before. As we rush headlong into more immersive control methods and sophisticated augmented reality integration that blurs the line between real and virtual worlds, a whole new can of worms could be about to open. The future of videogame development is still bright - but the future of videogame and IP lawyers may be even brighter.

Based in Scotland, Dave Cook is an award-wining freelance gaming journalist, blogger and managing director of iPhone PR consultancy Ink Media.

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