HHR New Media, Entertainment and Technology Group

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.

The Entertainment Consumers Association (“ECA”) has retained Hughes Hubbard and the Brooklyn Law Incubator & Policy Clinic to assist it in submission of an amicus brief to the United States Supreme Court in a case with potentially wide-ranging impact on the video game industry.  The case, Schwarzenegger v. Entertainment Merchants Association, involves a California law that regulates the sale of  video games by imposing a labeling requirement based on content and prohibiting the rental or sale of certain games to minors.  The ECA opposes the Act on the ground that video games are free speech protected by the First Amendment.  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 »

In a decision that shocked some in Hollywood, a California district court recently held that a popular video game did not infringe on the copyrights of a previously-released motion picture, even though, at first glance, the game and film contained strikingly similar characters, themes, and plot lines.  With video games becoming more “cinematic” in their stories and themes and the industry now established as a substantial source of revenue, this decision highlights the difficulty that film copyright holders may have in asserting ownership rights in video game elements and preventing others from profiting on their protected works without permission. Continue Reading »