Violence and Brand Identity: Legal Issues in Gaming

Happy St. Patrick’s Day readers! A few weeks ago, I discussed the legal side of video games and how it affects us as game loving consumers. Today, I’d like to revisit the legal issues with the gaming industry and entertainment in general. A series of podcasts from a series called Entertainment Law Update by Gordon P. Firemark, Esq. will provide the topics of discussion today.

Obscene v. Violent

The first podcast, titled “Episode 22: Violent Games, (anti) Slapps and other painless fun”, featured issues regarding a variety of topics including the Mike Tyson tattoo controversy that spawned from the Hangover II and everyone’s favorite song dedicated to a day of the week!

www.bittenandbound.com

While these issues don’t directly relate to gaming, there are still lessons to be learned from the cases. The Hangover II case, for example, reminds us to be extra diligent when using any type of graphic or visual representation that is associated with a particular person or company. Keep in mind, for you aspiring video game programmers out there, that you should probably gain clearance if you are to depict anything in a video game that is a reference to a real person or company, as right of likeness cases pop up all over the place, even when they may not be intentionally infringing. (Note: This is just my opinion. I’m not a lawyer, so please consult someone who gets paid to give that kind of advice!)

The real topic of interest is the video game law that got turned down in California. Basically, the State of California proposed a law that would make it illegal to sell video games with certain themes (such as violence) to minors. Retailers that did sell these restricted games to minors would suffer a fine of $1000. The Supreme Court ultimately turned down the law, stating that it was too broad and conflicted with the First Amendment. Firemark and his associate, Tamara Bennett, offer their opinions. Bennett agreed with the Supreme Court’s decision, stating that the restrictions the Supreme Court currently has in place deals with obscenity in media, not violence. She suggests that the State of California’s new video game law is trying to apply the restrictions that deal with obscenity to violence, which is a big leap to make. Furthermore, the State of California is asking that the law only apply to video games. My opinion on this matter can be found in a prior post.

This is an important decision for those of us in the video game industry, as a law such as the one proposed could greatly decrease our customer base as well as create higher barriers when selling products. Moreover, from an artistic point of view, it could cause game developers to censor their work, making the stories that they want to tell less realistic. Realism in games is part of what makes playing them so appealing. The question, however, is how far can we take realism before it becomes harmful in the real world?

Realism v. Brand Damage

The second podcast, titled “Episode 28: Political campaigns, combat helicopters and Batmobiles,” covers a variety of topics, the most interesting of which is EA’s use of the First Amendment in it’s game Battlefield 3.

www.wikipedia.org

Basically, Textron, a helicopter manufacturer, threatened legal action against EA if the company included Textron’s trademarked helicopters, the AH-1Z, UH-1Y, and V-22. In a preemptive response, EA filed suit against Textron, citing the First Amendment and the freedom of artistic expression. Part of EA’s defense rests in the fact that it provides a disclaimer stating it does not endorse any particular brand of vehicle or weapon in the game, and, likewise, EA is not featuring any brand of vehicle or weapon more prominently than another. The case was resolved in EA’s favor, stating that the freedom of artistic expression trumps trademark protection. You can read more details of the case here.

Battlefield 3 helicopter | joystiq.com

This outcome is a double-edged sword for us in the gaming industry. On the plus side, EA is allowed to create a realistic video game that features real-world brands and puts them in front of the player, which can be good for the company as well. The problems, however, quickly accumulate. What if, in Battlefield 3, there is a segment where a helicopter malfunctions and causes the squad to crash in enemy territory? What if that helicopter was a V-22 Bell, one of Textron’s trademarked models? Does this say that this model is unreliable? While many are likely to view the crash as a result of war, it is nonetheless a possible question to consider.

How can we resolve this conflict? We want the games to be realistic, which means using real world brands. Likewise, realism dictates that sometimes real-world products malfunction, break, or otherwise cease to be useful. Companies argue, however, that they don’t want to be associated negatively and scenarios like the one above could be damaging to their brand. As a business owner, I’d had to see my brand being exploited and portrayed in a negative light, especially without my consent, but I can definitely see the argument of creative expression and realism from the game developers side.

How do we strike the balance, then? One of the legal system’s favorite video games to target, the Grand Theft Auto series, has one solution: mock existing brands.

Notice Sprunk, a clear imitation of Sprite | www.newpcgamesite.com

What do you think? How can we strike a balance between realism and fantasy in our video games so that we, as consumers, can distinguish between the two?