HHR New Media, Entertainment and Technology Group

Mobile apps have blossomed from nothing into an expanding multi-billion dollar industry in just a few years.  Just last week, the millionth app went on sale somehere in the world.  And the industry is projected to continue to grow despite tough economic times. 

A great deal of this growth stems from the increased access that children have to devices that are capable of supporting mobile applications, such as smart phones and iPads.  So perhaps it is not unexpected that the mobile app industry has started to attract some negative press, mainly from Congress on behalf of parents concerned about violent content and privacy issues. 

In an effort to preempt Congress from stepping in to regulate mobile apps, two industry groups, the Entertainment Software Rating Board (“ESRB”) and the CTIA (a wireless industry trade association), recently announced a voluntary rating system to help parents to make informed decisions about whether or not a given mobile application is appropriate for their children.  The ESRB has considerable experience in this realm, as they have been in the business of rating computer and console video games since 1994. Continue Reading »

The Supreme Court has struck down a California law that sought to regulate the sale of  video games by imposing a labeling requirement based on content and prohibiting the rental or sale of certain games to minors.  In its decision, the Court found that, like books, plays and movies, video games communicate ideas through literary devices such as characters, dialogue, plot and music and through features distinctive to the games’ medium, such as the player’s interaction with the virtual world.  As such, the games were entitled to First Amendment protection and the California law, which would have prohibited the sale of “violent video games” to minors and required such games to be specially labelled, was unconsitutional. 

In dismissing the State’s arguments that the law was addressing a substantial need of parents which wish to restrict their children’s access to violent games but cannot do so, the Court stated that the ratings of the Entertainment Software Rating Board (ESRB) and video retailers’ efforts in not selling games rated “M” to minors helped ensure that children would not be able to purchase violent video games.   Thus, the “remaining modest gap” that the California law was intended to fill could not be deemed a “compelling state interest” that could overcome First Amendment protection for the games.

The full decision can be found here.  As noted previously, Hughes Hubbard & Reed represented the Entertainment Consumers Association in filing an amicus brief opposing the law.

Over the last year, social networking sites, most notably those with a developer platform such as Facebook, have become hotbeds for virtual goods purchases, social gaming, sweepstakes and advertising-based promotions.  Many of these are based on custom-designed and developed third party applications and widgets, which are veritable revenue drivers for the platform operators.  Several months ago Apple modified the terms for its iPhone application development agreement (via an amendment to the iPhone SDK terms)  to specifically permit app-based contests and sweepstakes.  Specifically, Apple added the following language: “Your Application may include promotional sweepstakes or contest functionality provided that You are the sole sponsor of the promotion and that You and Your Application comply with any applicable laws.” However, questions have arisen regarding the legality of running these games and promotions via such applications and platforms.  At their core, these questions focus on the legal distinctions between lotteries, contests and sweepstakes, distinctions that could mean the difference between a highly successful promotion and a high-profile legal headache. Continue Reading »

The next interactive gaming revolution will soon be ushered in by a wave of gesture detection control systems, where the player’s body controls the action.  Beginning this year, game developers and publishers will have the technology to develop a viable motion capture-based game, one with more potential applications than any gaming console or system released to date.  Using a TV-mounted motion detection camera and a handheld controller, the PlayStation Motion Controller (rumored to be named the “Arc”) will be capable of recognizing and tracking a user’s face and voice as well as body motion.  Similarly, Microsoft’s Project Natal system for the Xbox 360 will use a TV-mounted motion detection camera that will track the movement of every part of the body, and capture, for the first time, a three-dimensional representation of the player on the screen completely sans gaming controllers. Now, as consumers await the release of a slew of motion capture games scheduled for retail this holiday season, publishers and developers alike need to brace themselves for the myriad of potential legal issues concerning the ownership and licensing of the movements replicated and featured in those games. Continue Reading »

If you are designing or developing a video game that depicts this planet or any other fictional world, then you need a pair of trained legal eyes to review the people, places, products and things that will be featured in the game. Go it alone, and you are traveling down a windy road that intersects with copyright, trademark, privacy law and the First Amendment, where the case law is complex, the rulings are inconsistent, and the outcome may ultimately depend on the jurisdiction. Make one mistake and you will find yourself staring down a lawsuit before your game title moves a thousand copies. Whether the lawsuit is filed by the owner of a popular destination who thinks you stole the “look and feel” of his establishment (see E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 2008 WL 4791705 (9th Cir. 2008)) or the lead singer of a retro-funk dance group who claims a character in your game wears the same clothing and resembles her (see Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (2006)), video game profits have caught the world’s attention, and, as in all things, success leads to lawsuits. Continue Reading »