Posts Tagged ‘video games’

Cliff Bleszinski of Epic Games

This past week, game designer Cliff Bleszinski (of Unreal Tournament and Gears of War fame) tweeted a link about the upcoming case and encouraged people to sign an online petition protecting the First Amendment rights of video games.

This fall, the US Supreme Court will hear the case of Schwarzenegger v. EMA concerning a California law aimed at stopping minors from purchasing video games with violent content. The law was passed in 2005 and signed into law by Governor Schwarzenegger. The Entertainment Merchants Association (EMA) challenged the law on First Amendment grounds. So far, the lower court and appeals court have agreed with the gaming industry: the law has never gone into effect. The law would brand certain games as “violent” and restrict the sale of such games to minors. Merchants would be required to affix a white sticker labeled “18” to the games and would be subject to a fine if they sold the games to persons under 18.

The First Amendment is the closest most Americans come to considering something sacred. However, free speech has never been unlimited, as concerns for privacy and public safety (among others) have always been balanced against free speech. Free expression towards minors is an especially touchy subject, as minors are viewed as more impressionable and are often less able to choose where they can and cannot be and, hence, who they can and cannot listen to. Two of the better known exceptions to free speech involves minors. First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

Call of Duty puts players behind the trigger in Afghanistan, which is disturbing to some. Free expression protects people's right to be disturbing, however, and is limited only under extreme circumstances.

Proponents of the CA law have argued that violent video games should receive an exception similar to pornography and children. In order for a law limiting speech to pass a Constitutional test, it must be targeted at a legitimate problem and the solution cannot be too broad, but must regulate only that problem.

Violence among adolescents is a real problem and the psychological trauma children experience from being exposed to violence is no myth. What is not as clear is if violent video games have any real connection to either of those. Most studies I have seen on the subject call the relationship between violent games and violent behavior correlative, rather than causal. Which is to say, it may be that people develop a taste for violence and then seek out violent games, rather than violent games giving them the desire, the data is not clear. The CA lawmakers have thus far failed to convince the courts that violent video games are a legitimate threat to children’s safety and well-being.

GTA: San Andreas box art

Grand Theft Auto: San Andreas created controversy when a secret mini-game was discovered that allowed players to have in-game sex with their virtual girlfriend. One woman complained that she had purchased the game for her 14-year-old grandson, only to discover the "filth" after the purchase. The game, however, was clearly labeled M for Mature (17+). It is unclear whether the CA law would do any more than the current system.

Even if, for the sake of argument, violent video games cause the evils people accuse them of, any law dealing with the subject must be narrow (precedent calls for the “least restrictive manner” available to be employed). The CA law fails to give a good definition of what makes for a “violent” game, so the terms they use are broad, and courts don’t like broad terms in narrow laws. Another issues the CA law has failed on is showing how the law will do better than the current system. Video games, like the film industry, employ a self-imposed rating system, assigning games a rating from All Ages to Adults Only. Many stores adhere to those guidelines and refuse to sell games intended for mature audiences to children. Because the rating system and store compliance are voluntary, the system is not restricted by the government at all. This is constitutionally ideal because it lets people say what they want, and lets people listen if they want. Violent games still end up in the hands of minors, but that doesn’t mean the system isn’t working, or that government regulation would work any better.

For these reasons, the law will probably be struck down by the Supreme Court. The sale of pornography to minors does create precedent that the Court could latch on to and go the other way. If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.

I am an arts/entertainment attorney and a fan of the First Amendment. I think people should have the right to offend.  Some of the most important ideas in human history were offensive to someone (the best ones were offensive to a lot of people). Some ideas lead to violence, others to peace. It’s dangerous for governments to cut people off before they’ve had a chance to be heard, and though I doubt the industry would suffer much from a loss, I like the message the Court would send with a win.

Plus, video games before the Supreme Court… how cool is that?

The Conduit took place in DC and included famous landmarks like the White House. The Supreme Court didn't make the game, but after this case, gamers may come to think of the Court as a place to protect... or frag.


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In our society, signing ones names wields great power; but with great power...

The question “should I sign?” is one of the most pressing faced by artists. Our legal system allows people to form contracts that bind them to do just about anything, making signing scary, as the wrong contract can cost an artist money or control over their work. This post will explain the fundamental issues of what happens when one signs an agreement to transfer some or all rights in an artistic work.

Copyright, like all intellectual property, can be in more than one place at a time, leading to long and complicated agreements about who owns what. Further complicating the matter is the fact that copyright is a bundle of rights (right to make copies, right to make derivative work, right to distribute, right to perform, right to display, right to transmit) and each right can be transferred independent of the others. The two most common agreements involving copyright are assignments and licenses.

An assignment is like a sale, the copyright no longer belongs to the artist. During the life of the assignment, the owner may do whatever she wishes with the work. Assignments may be granted for all rights or just for some. A rapper could assign performance rights to a piece of music to a single act, while retaining the right to copy and distribute the underlying music and lyrics for himself. Assignments may also be for limited periods of time, limited uses, or conditioned on anything the two sides agree to.

Serious Hip Hop Album or Kia Car Peddler? Truly, the Choice is Yours.

A license is more like renting, it gives permission to use a copyrighted work for specific purposes for a certain period of time. Licenses may be exclusive to one user or non-exclusive, allowing the copyright holder to give permission to as many people as they choose. Returning to our rapper from before, instead of assigning the performance right to a single act, he could license the non-exclusive right of performance to ten. While retaining the underlying rights to the background music track, he could license the right to create piano sheet music adaptations. The rapper could even license his most memorable song to a car company so hamsters could jam to it, all the while retaining his right to sell the original album on iTunes. Doo-Da-Dippity!

Art by Jack Kirby, for whatever that's worth.

The combinations of what can be accomplished through assignments and licenses is limited only by the possible uses of a particular field of art and a few protections written into the copyright code. One protection is the right of the original artist to reclaim the copyright 35 years after assignment. This is done to give successful artists the chance to reclaim their early work that may have been signed away in the haste of youth. The children of deceased comic artist Jack Kirby are currently trying to reclaim the rights to characters he created while working for Marvel comics in the 1960s and 1970s. The outcome will turn on what the nature of Kirby’s “while working” was. If Kirby was a freelancer or he created the characters and them brought them to Marvel, he may reclaim the copyright. If he was employed by Marvel in a work-for-hire capacity, as I noted in my previous post, then everything he thought up for Marvel belongs to Marvel.

Tetris creator Alexey Pajitnov (right) with Henk Rogers, one of the men who secured distribution rights to the game for Nintendo.

At one point in the late 1980s, the video game Tetris was subject to at least five assignment or license agreements. Nintendo brought the game to it’s Gameboy handheld system because it negotiated with the proper people, the Communist Soviet Government, rather that the man who invented the game, or his department head, as other tried to do. Because of messes like this, companies will require an artist guarantee they are the true owner of the copyright and the deal won’t go sour later because the person signing the deal didn’t have the right to.

The idea of “optioning” a script or book is often misunderstood. An option contact is an agreement by an author to keep their work “off the market” for a period of time to allow the producer time to put together financing or work out other details around a project. A screenplay or book may be optioned for as little as one dollar and guarantee only that the author won’t sell the work to anyone else for the next six months. That’s it. Unless a script is later bought by assignment or licensed for use, the option is worth only the original payment and the buyer holds no right to use the work.

None of this answers the critical question “should I sign?” because the answer to that depends on an artist’s goal for his or her work and career. The basic thing to remember when signing an agreement is that you will be balancing money and control. The more control you give, the more you should be paid. The more control you retain, the less money you will receive. Young artists often have to give control of their art and careers away for the financial backing studios and labels provide. The money people aren’t necessarily being greedy by retaining most of the profits; they are the ones who took the initial financial risk and bear the losses if money isn’t made.

Lawyers can be very useful in understanding what specifically you’re being asked to sign away and what you’ll be getting in return. Lawyers often know of different ways for you to achieve your goals and different industry standards.

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