Wednesday, September 30, 2015

TwitchCon's Law and Video Games Panel

Obviously I was at home and working this past weekend, so anything of or related to TwitchCon found its way into my brain through Twitter. I saw some discussion about a legal panel going on and I got so excited that I made it my mission to figure out which of the 8,000 stream channels had it running. It's nice not to feel weird, you know?

I only caught the last couple minutes, but I knew I was going to need the V.O.D. in my life at some point. Sure enough, it's been posted, and now I'm happy to be able to share it with you. Check it out for about an hour of real-talk from people who are in the trenches of figuring out just how streaming/youtube can possibly co-exist with copyright law!

Watch live video from TwitchCon BibleThump Theater on Twitch

If the embedded player isn't working, check out the link right here.

Monday, September 28, 2015

What have we learned?: Trademark Dreams Collection

I've had a weird notion the whole time I've been writing on this site that the stuff I'm putting out is at least a little bit educational. I'm sure as hell not replacing actual teacher instruction, and I keep things too simple for it to be a replacement for an actual lawyer's analysis...but I'm trying really hard!

In the spirit of the end-of-topic review sessions I remember from my high school days, let's apply all the things we "learned" about trademarks as a case study:

"Sonic Dreams Collection press splash image" by Source. Licensed under Fair use via Wikipedia
Just when you thought it was safe to put down the brain bleach. (source)
Aw yeah, now that the Sonic Dreams Collection's fifteen minutes of a fame have come and gone, I'm finally ready to get on the bandwagon to talk about it. For those of you who somehow missed the entire Internet for the month of August, Sonic Dreams Collection is an extremely unauthorized "game" using characters and motifs from the Sonic the Hedgehog games and puts them as objects in some Unity-Engine-tastic environments. These different environments let you make "original characters" based on Sonic and manipulate physics objects in the likeness of Sonic characters like Tails, Rouge, and other copyrighted/trademarked characters. I'm not going to bother getting specific up here, but you've gotta see this nonsense. No matter how sober and aware you are, you will certainly feel like you've been tripping balls for a week in the company of a stranger who can't stop telling you all about their favorite tentacle-porn artist on Deviant Art. Hit up Youtube, watch someone play through this craziness if you haven't already, and then we'll start dissecting the legal problems that in no way diminish how good a send-up this is of fandom.

Back? Cool. Remember, you can always drink to forget what you've seen.

Now, let's start with how strong a trademark Sonic is. We know that you can't trademark the general idea of a character running fast in an explorable environment and collecting powerups to beat a boss. If you could, Sonic wouldn't exist. Instead, you can trademark the brand of game you're making by creating a distinctive, "fanciful" name for it. "Sonic the Hedgehog" fits that criteria pretty well since (1) it was quite early to the animal mascot craze for platformers, (2) a hedgehog is a random animal with no inherent connection to running fast, which makes it fanciful, but we do have (3) which is the word "Sonic" being kind of descriptive of the character's speed. Overall, Sega's in a good place to be able to protect that brand...but it's the internet and people who want to make kind of demented fan works about your child-friendly character aren't going to be stopped by a little thing like that!

Webcomic from three years ago, still relevant today.
Stay weird, internet. (source)
And Sonic Dreams Collection is a cluster of games parodying the internet's id under the guise of being "lost" Sega games. We know it's a violation of trademark, but we also know what kind of violation it is. We learned about blurring, tarnishment, and and consumer confusion, and if this was a law school exam question we'd need to talk about all of them. Blurring is when a non-mark holder is likely to cause consumers to associate goods and services other than the mark-holder's with the trademark. It's what you accuse someone of when you're worried about your trademark getting turned into a generic term. Tarnishment is exactly what's going on here since it's pulling a cartoon mascot character from a family friendly line of games into the realm of mature self-insert fanfiction and inflation fetishes...which is kind of funny since I think Sonic had long since been tarnished with those things anyway, but the developers are saying out loud what has been known for years so they get the heat. And then there's consumer confusion, which is exactly what it says on the tin: the claim that people might mistake this for an actual Sonic game collection and have a bad reaction. THAT, is something that I think we need to talk about.

"No one" is going to mistake this for a real Sonic game. You have to go to a special, non-Sega website, put in a password, and then download it. There's no console release, no Sega logo appearing at the beginning, and a few seconds into any one of these games it's going to be pretty obvious that this is a joke. It's satire, and not even really satire about Sonic the Hedgehog. It's a goof on how the internet views Sonic - the subject of millions of pieces of strange, self-inset fanfiction and fanart that often have darkly sexual twists. If you know about that aspect of the internet, you know exactly what this is and can have a laugh about it without even once thinking it was an actual Sonic game.

But note the scare-quotes I put around "no one." We can tell ourselves over and over again that not a single human being would ever confuse the Sonic Dreams Collection with a real Sonic game. Well, my delightful little learners, if you've picked up anything from what I've been putting down this month it's that judges exist in a realm apart from what we think of as "common knowledge." The average federal judge - which is where a case like this would be heard - starts their career on the bench at around 50 years old. He or she does not know what a meme is, and would likely pronounce it "may-may." He or she has never heard of Deviant Art, and the first time they do hear about it they will likely assume that "deviant" means it's a site for weird sex stuff.....which ...well okay, a broken clock is  right twice a day, but that's not the point. There is nuance to this hypothetical case that a judge is straight up not going to catch, even when it seems obvious to us.

Sonic Dreams Collection is not going to be the big case that finally forces us to have this fight in the courts. Sonic Dreams Collection isn't going to be the poster child for the judiciary finally coming up with a useable, consistent definition for what is and isn't "fair use." But I do think we should look at Sonic Dreams Collection as a way of testing our skills for when that case does come. We need to know just how alien all this stuff sounds to the legal system and then figure out a better way to explain it. We can dig our collective heels in, try to force our perspective onto the law, and pretend we're fighting the good fight, but we'll lose.

Let's keep the Internet weird. Let's not lose it just because we didn't know how to talk about the things we care about.

Friday, September 25, 2015

Kickstarting Nostalgia: How Hard Can Creators Lean On Past Successes?

I wonder when we'll run out of things to say about Kickstarter's impact on game development.

Morality, economic viability...we seem to have talked about it all, but one thing I haven't seen much about is whether the respected developers turning to crowdfunding are playing with fire when they lean so heavily on their past games to market their new, independent ones. So far, developers haven't had any problems with their marketing campaigns running afoul of the companies that still hold the trademarks to the older properties, even where those old names are plastered all over the campaign. But that's something I can chalk up to the pragmatic rule of thumb that lawyers hate to spell out for people: If everyone's cool with something, it's cool. Thing is, you should never rely on everyone staying cool. People not staying cool is why lawyers have job.

Pictured: A dude being chill.
Not pictured: The legal profession. (source)
So what happens if everyone isn't cool anymore? What happens if the studios that still own the trademark's on those nostalgic, beloved properties decide they're not so thrilled with those marks being used to get funding for a competing project? The Kickstarter I want to use as our example case is the epic campaign for Koji Igarashi's "Bloodstained: Ritual of the Night." It's long been funded (which, for disclosure's sake, I'll say that I was not a part of), and it's undeniable that his past works are huge part of why it was so successful. Considering how....un-cool Konami  has been lately, maybe it's worth investigating from the outside whether they might try to turn the marketing for "Bloodstained" into another way of cutting down the competition.

The Kickstarter for "Bloodstained" knew exactly how to leverage Igarashi's history on the "Castlevania" series for maximum effect. As kickass as the little movie he made to pitch the idea was, he literally could not have made work without pulling from the imagery and tone that made the Castlevania series such a classic. Common sense tells us that the campaign wants to remind us of stuff like "Symphony of the Night" right off the bat in the new game's title. He's even got a term on the page - "Igavania" - as a description of gothic, exploration-focused action platformers like the ones he's built his reputation on. Even if they don't say it out loud, Castlevania is all over this Kickstarter, and the property is basically being used to sell a non-Konami product. I think there's an argument to be made that Bloodstained is advertising with a trademark it doesn't own. That makes me nervous!

Thankfully, there are protections for people who want to use their past work to advertise themselves on the internet. This is the part where I usually link to some case from back when Netscape Navigator was still a thing and use that to go point by point, but....I can't this time. Trust me, there is totally a case that is directly on point for this and it actually gets cited by courts on the regular...but I'm not going to link it. Don't make me link it, guys, it'll really mess up the search engine terms that bring people to this site. I'll do the best I can to describe it without getting too direct. See if you can crack my code.
Before you bust this thing out, remember that I have absolutely zero creativity for anything
other than crafting terrible, rambling analogies. (source)
In the early days of the internet, there was a very pretty young lady who was well known for photographs that existed of her. These pictures presented her in states of near-to total-undress, and she had built a career out of being in these pictures. Before setting up her own website, this young lady had been in pictures for a certain magazine owned by a man we will call..."Blue Blefner"...and this magazine..."Blayboy"...had at one point named this young lady its...."Blaymate of the Year." On her website, she listed her past work and credentials, including her title of Blayboy Blaymate of the Year. Blayboy found out about this and sued the young lady for misappropriating their trademarked terms. The court ultimately held that she could use her past professional association with Blayboy and her title as Blaymate of the Year as long as it was made clear that she was no longer associated with Blayboy and was operating independently. This case is pretty thorough and gets cited in most of the useful decisions that follow as the internet starts taking center stage in socialization and commerce. One could even say that rights to...bornography...was absolutely vital to shaping the rules that guide internet law to this very day!

Alright, I think I managed to dodge search engine confusion with that top-secret code, but you get my point. As long as it's just one part of marketing that you're doing, use of trademarked names and phrases as a description of your past experience can be okay. But is Igarashi's campaign a little far over the Blaymate of the Year line? I think it might be.

Couple reasons: One, the name of the game. Might as well have called it "Transcastlestaindia: Rituaphony of the Night." Feels like they're pushing hard for the "We're the real successor to C:SotN!" market. Two: "Igavania." I love making up words as much as the next English-speaker, but this one makes me nervous. Where'd you get the -vania, IGA? It's not in the name of the intellectual property you actually have a claim on. It's from someone else's license. Three: Konami. They've seemed to have no qualms about playing the Saturday morning cartoon villain of the video game industry these days. Between the obvious tie in to a property owned by Konami and the fact that Bloodstained is going to look like a direct competitor to any future Castlevania games the publisher might want to put out.

I can fret all I like, but I think IGA and Bloodstained are going to be just fine. And it'll be awesome to see the game when it comes out since it looks cool. I mean, I'm probably not going to be able to play it since my awful reflexes, spatial perception problems, and terrible sense of direction make me bad at action, platforming, AND exploring, but I'll love watching it on Twitch!

Tuesday, September 22, 2015

Current Events: Kickstarter Has Reformed Itself As A Benefit Corporation

.....Is "Benefit Corporation" a real thing?

I don't know about you, but that was my first reaction. Corporate law isn't exactly my professional wheelhouse, but I had to take the course just like every other 2L in the country. I don't remember a thing about benefit corporations. I learned a few things in law school: (1) that corporate law is only concerned with structures and taxation, and (2) the legal system is really poorly equipped to deal with questions of morality unless it's in the context of punishment. Everything I'm sure of tells me that benefit corporations cannot possibly be a thing.

And that just goes to show how much I know, because right after a thread on reddit brought the Kickstarter to my attention I started Googling. Sure enough, they are totally real, but the fact that I didn't learn about them during my law school years is justified by the fact that they didn't exist back then. That doesn't change the fact that I think their very existence is weird, though. As for Kickstarter's take on what being a benefit corporation means, they list such goals as increased transparency, not using the crazy loopholes in US tax law that allows corporations to pay nothing in taxes, donating a portion of their profits to various nice causes like childhood arts education among others, and keeping their CEO pay in check. That sounds nice. I mean...companies that aren't specifically incorporated as benefit corporations can do all this stuff too, but this is certainly not doing any harm. Seriously, I'm kind of an alarmist about law being used for stuff it's not super good at, but I really don't see any harm in it. 
But there has to be harm, right?

Just like how this adorable Pomeranian is clearly plotting something in that sunny field of tulips.
I'm onto your games, you fluffy little fiend! (source)
Has to be. So I went digging through a few states' statutes about these cuddly new corporate entities and found that they're pretty much the same between across the country (can't promise that, though; I didn't look at all 28 states that let you incorporate as one of these things). The results of my search are...still pretty benign, if not especially meaningful. One of the only states where technology companies are going to incorporate is California, so I'm going to look specifically at the legislative language there. Get ready to not be blown away:

14610. (a) A benefit corporation shall have the purpose of creatinggeneral public benefit. (source)

Let me lawyer all over these good intentions. The definition of "benefit" is not spelled out anywhere in the definitions section at the beginning of the statute. As such, the phrase "general public benefit" is basically legally meaningless. Common sense may tell you what that means, but if the world were that simple, my sweet summer children, a former President of the United States would not have told the media "It depends on what the meaning of the word 'is' is." How warped does being a lawyer make you? I understand that sentence. THAT's how warped.

Damnit, man, you didn't have to crystallize everything wrong with lawyers in
one sentence like that! Spread it out!

So you give me the phrase "general public benefit" and I want to know: what's the minimum number of people who would be "the general public?"; what metric do you use to measure "benefit?" ; can you only create benefit through disbursement of money?

Now let's take it down to specific hypotheticals: If a movie or tv production company takes all of the leftovers from their craft services tables to the local soup kitchen after they wrap for the day? Would that be enough for them to reincorporate as a benefit corporation? Or how about if the board of directors for a regular corporation promises to use some of their lobbying power to pursue wildlife preservation legislation? Can they be a benefit corporation? And how about this old favorite from my area of the country: If an executive uses their bonus to build an additional wing on their house, thus employing contractors and construction workers as well as creating demand for things like lumber and stone, is that executive not contributing to the economy in a way that benefits multiple members of the public? Are you a benefit corporation if a bunch of people are going to be paid to build a bowling alley onto your CEO's house?

The thing that really guts my ability to take benefit corporations seriously is the lackluster "enforcement" provisions that only permit people already inside the company to sue the company for not making good on its purpose of being a nice guy. If a benefit corporation goes about its business just like any non-benefit corporation does, the general public cannot take legal action to enforce those promises of doing good. And are they really going to do that when there's a sweet personal bowling alley in it for them if they keep quiet?

There could have been plenty of fodder for scrutiny on this whole Kickstarter-Is-A-Benefit-Corporation thing, but the law is just too flimsy for that switch to have much weight. I think it's super nice that Kickstarter wants to do good in the world and donate to charity. That's awesome! But they didn't need to become a special class of corporation to do it. Ultimately, this is a feel-good measure without any real substance, but sometimes the message is what's important.

If you were worried that this would restrict Kickstarter's ability to host a variety of projects, don't be.

Monday, September 21, 2015

Sorry about the lack of post today

I had a post topic all ready to go, and it's mostly written out, but a pretty huge wrench got thrown into my plans.

Right around the time of day I'd be finishing up, something happened that really knocked the wind out of me.

Our neighborhood had a gray and white stray cat that roamed between houses for food and shelter from the rain. Every family seemed to have a different name for him. Over the last couple years he'd mostly stuck around our house. He'd get dinner here every night, hung out on our porch when the weather wasn't great, and was a pretty awesome buddy for our indoor-outdoor cat. He didn't like staying inside for too long, but one of the local families had hung onto him long enough to get his shots and have him neutered. He had the best of both worlds

But now he's gone.

Some moron hit him with a car and just left him there. Just left our buddy on the side of the road. We picked him up and we're going to give him as much love at the end as we did when he was still alive. I'm going to miss his goofy crossed eyes, his squeaky howl-meow, and his big fluffy tail. I'm gonna miss him sitting belly-up on our deck for hours at a clip. I already miss our buddy.

I'm just not in the head-space to write about benefit corporations and Kickstarter. I just want to be sad right now and miss my weird, squeaky, transient kitty friend.

Bye bye, Frenchie/Pedro/Poirot/Eddard Wolfcat, Lord of Wintermeow. It hasn't even been a day and I already miss you.

Friday, September 18, 2015

You're Only Hurting Yourself: How Trademark Holders Can't Fight The Secondary Market They Created

Once upon a time there was a well respected and venerable jurist named Richard Posner. He held tremendous respect from his peers on the bench and the legal profession at large, and held the distinction of being the most cite judge of the 20th century. He merged the fields of law and economics together in his academic writings, and while not all lawyers agreed with his views on that front, he remained a steadfast and solid asset to the legal profession.

And one time he had to talk about Beanie Babies and it was sort of hilarious because of how serious he was about the whole thing.

My personal amusement aside, the case of Ty, Inc. v. Perryman had plenty of meat on its bones to make it worthy of Posner's analysis since it presented an important question of marketing on the Internet and the validity of online re-sellers being able to accurately tell potential customers what they had for sale. The defendant in the case was Ruth Perryman, a seemingly nice lady who had a website where she re-sold bean-bag stuffed animals. Some of them were Ty Beanie Babies, and some weren't. Now this case was decided in 2002, and considering the parties are a corporation that was had struck gold with a fad toy and a Midwestern housewife, I figure the original suit was filed at the tail end of the "Beanie Mania" that gripped the United States between 1995 and 1999. Ty found out that this little lady was operating a site called "" and very quickly freaked out at the prospect that their trademark was being diluted by her site.

Courtesy of the Wayback Machine, we can have a little taste of the site they were so scared of that they made Richard "I have published 40 books" Posner write the sentence "Now suppose that the restaurant that adopts the name 'Tiffany' is actually a striptease joint." You ready for a pure shot of 90s web-design straight to your eyeballs?

Sometimes there's so the world.
.....I feel like I can't take it
Obviously, a screenshot cannot capture all the majesty this site has to offer, and we are sadly too far into the cold, joyless future to be able to see all of the animated gifs and clip art it surely once had. Another thing not in that screenshot (but which you can find at the link!) is a little disclaimer at the bottom of the page saying that Bargain Beanies was not affiliated with Ty, Inc. I hope I'm not shocking anyone when I say that a disclaimer like that isn't going to be enough to keep the lawyers away.

Ty came at this site with a charge that Ms. Perryman was diluting their trademark on the term "Beanies" by calling other non-Ty beanbag stuffed toys "Beanies." Perryman argued it was a generic term for toys filled with beans instead of stuffing, and that was basically all she had as a response. What else was she really going to say? Ty kept on the dilution point by specifically accusing the defendant of "blurring" the meaning of the term "Beanies" and thus watering down Ty's trademark on the term along with consumer confidence in the origin of products calling themselves "Beanies." The last thing any company wants is for their precious trademark to become so blurred and widely used that it becomes generic. "Genericide" is a term we in the legal profession actually use without even having the decency to be embarrassed. It comes from the idea that a brand is basically dead once its key terms have become synonymous with similar products or services rather than being strictly proprietary.

On top of blurring based dilution, you also have "tarnishment" dilution, which is when those products using the term trademarked by another company produce a product that harms the good name or image of the trademark holder's product. That's where Posner gets into his Tiffany-strip-club example, basically saying that the fancy jewelry place "Tiffany" might have a claim for tarnishment of their trademark if a strip club opened up under the same name. Now instead of boring, jewelry, people might think of boring, overpriced jewelry AND really depressing lap dances! Unacceptable!

Thing is, Ty didn't want Perryman to be using the term "Beanies" at all. There's a real tension between secondary market folks like Perryman who have the potential to make a serious profit off the resale of an item and the original producers like Ty who made money at one point of sale and would obviously love to make money every time that little beanbag bear changes hands. On the surface, counsel of Ty made it look like a trademark issue, but this was really a matter of economics and attempted control over the secondary market.

And it's exactly at a time like this that you want Richard "I am the mind behind the Law and Economics movement" Posner to be writing the opinion.

Only the legendary wit and analytical prowess of the 7th Circuit's Chief Justice can
accurately decide who gets to make money by selling.....this. (source
I've said before that trademark law is supposed to act like a shield protecting consumers against counterfeit goods, but it seems to often get used like a sword against competitors. Companies like Ty know that they look bad when they try to go the sword approach, so they really push the shield aspects of their arguments. You can see on the screenshot above that Perryman was selling non-Ty products on her website, so Ty's best argument was that she was eroding consumer confidence in these beanbag toys by calling these surely inferior quality toys "beanies." Posner's not buying it and even gets a little salty in his explanation of why Ty cannot suddenly object to the creation of a secondary market considering its business strategy:

"The main goal is to stampede children into nagging their parents to buy the new Baby lest they be the only kid on the block who doesn't have it. A byproduct (or perhaps additional goal) is the creation of a secondary market, like the secondary market in works of art, in which prices on scarce Beanie Babies are bid up to a market-clearing level."

The only argument I have with that statement is that I know for a fact that my mother was way more into Beanie Babies than I was, and plenty of other kids were in the same position.

Back on relevant stuff, Posner ultimately concludes, through a pretty solid understanding of search engine mechanics for the time, that a re-seller can't be barred from accurately marketing their goods on the basis that their store name or url includes a trademarked term. If someone is reselling Beanie Banies, they need to be able to let their potential customers know that their online store sells "Beanies," regardless of the rights Ty might have on the initial marketing using that term.

"Whatever, law nerd, I thought this was a blog about video game stuff!"

I'm getting there, voice in my head. There are plenty of ways Ty v. Perryman is relevant to the current video game environment. Let's say you're a collector of games for the Atari 2600. You're online looking for new additions to the collection when you find a site with the domain name On the site, the title says "Atari Games Preserve: Classic Games for Atari, Commodore 64, and More." Atari shouldn't be able to shut that site down for saying what he sells. If we're going to treat video games the way we treat other forms of media, there needs to be a healthy, viable secondary market for people to trade in obsolete formats and help them find places they will be cared for. You can't get a new "Joust" cartridge any more than you can get a new Hoot the Owl Beanie Baby. Producers can't get sour about secondary markets when there is no primary market for consumers to turn to.

Moreover, it's not as though the video games industry has nothing in common with a time when extremely popular toys were being underproduced, creating an unnecessary scarcity that encouraged the supply to be snapped up by re-sellers who the jack up the prices as high as the market can tolerate. It's not like we don't have a present situation where people are calling on a major video game studio to do something about scalpers and the company's response shows a misunderstanding of what tools are actually available to it so it instead shrugs its shoulders and asks us to please understand.

What I'm really trying to say with all this is where is my goddamned VILLAGER AMIIBO!?

Thursday, September 17, 2015

I did not take a hypocritical oath

Follow my blog with Bloglovin

Hey, everyone!

Content is on its way for tomorrow, but for now I'm trying to not be one of those out-of-touch techno-phobes I complain so much about when they're judges. With that in mind, I'm trying to be better about giving you all options to keep up to date with what I'm posting. This post is me telling the Bloglovin' network that I am not a shady person and genuinely exist as a creator of pretty damned niche content.

As you were. Nothing much to see here.

Wednesday, September 16, 2015

"Roll To Destroy Everything" on Can't Talk Media

Hi folks!

I'm still working on a nice, dry, analytical post about legal analysis that I can then spice up with fake words and terrible photoshops. As much as I know we all love that, I wrote about something else recently! The folks over at Can't Talk Media are having a table-top gaming week, and are running a little story I wrote about my experiences with the criminally underused D10 system.

The article is called "Roll To Destroy Everything," and it tells the story of a college-aged Eris Esquire absolutely ruining the best laid plans of her GM. 

Monday, September 14, 2015

Building a Strong Brand Name: Mario Teaches Trademark

Last week I got to revel in Universal committing trademark seppuku when they tried to claim they owned the entire idea of big monkeys on buildings with a lady up there with them. One of the many, many punches they took to the face on that claim was the fact that the phrase "King Kong" wasn't something the average person automatically associated with a Universal Studios product. Essentially, their monkey wasn't memorable enough. King Kong is just a gorilla doing a thing, not a specific looking gorilla beyond the fact that he's really big, and there's no one image of King Kong that people will point to and go "that's the real one."

As we learned back on Friday, you can't trademark a vague concept. If Universal wanted to have a trademark on a specific King Kong character, it would need to be distinctive from any other gorilla you might see hanging out on a skyscraper. But what makes something a good trademark? And do all bad trademarks eventually get torpedoed like King Kong did? Nope! I wouldn't have an article if that was the case, right? There are a few key features that can make a trademark that might seem weak on its surface overcome its disadvantages. In a video game context, I think Mario and, by extension, Luigi are good examples. These should not work as well as they do as secure brands and trademarks, but Nintendo's done all the right things to pull it off.

First, some trademark 101. As we learned with King Kong, you can't trademark a general idea, even if there's a fairly distinctive name to go with it . You need to get more specific so the trademark can be identifying a specific product or service. The more they stand out in people's minds as being specifically for your thing, the better. Trying to come up with a trademarkable name is tough since the strength is evaluated on a spectrum. A mark can fall into multiple categories at once since visuals associated with the name, whether it's a full blown logo or just font choice. Let's do an extremely basic primer using two competing fish food names I just came up with: "Food 4 Fishies" and "Snoogums," which is something I started randomly typing while looking at a ceiling fan, but for some reason the iPad's auto-correct isn't trying to mess with.

Four out of five sea creatures prefer the taste of food pellets named after the kind of stupid baby-talk
word their owner might use on an especially slow witted pet cat.
We don't talk about that fifth one anymore. (source)
Trademarks get a lot of strength points when they are "fanciful" or "arbitrary" names that don't really have anything to do with the product. Snoogums is objectively better in the eyes of the law on this front because it's not only fanciful but also arbitrary. It says nothing and if you are presented with a shaker of something called Snoogums, you're probably going to remember it, and if something else comes along calling itself that you're gonna get confused because who the hell else would call their product Snoogums but the Snoogums people? Food 4 Fishies, on the other hand, is descriptive, and descriptive of the thing it's trying to sell to boot! The horror. It's a weaker trademark in that respect because someone else could sell "Food For Fishes" and be considered a completely distinct trademark. Again the more flair you give the name, like having a really cool...font, I guess?...helps make it distinctive. There are more factors that go into the judgment, but we're going to stick to these for now. Obviously there's a trade off here at the initial point of sale where customers are going to be a lot more confident in what they are getting from a can of Food 4 Fishies as opposed to a can of something called Snoogums, but we're just trying to learn some law here.

In the end, coming up with a really solid trademark is more art than science. It helps to remember that the origins of trademark law are rooted in consumer protection (a shield for customers as opposed to the sword against competitors it seems to be used for constantly these days), but it's still going to be inexact. What I want to bring this back to is how Nintendo's Mario and Luigi brands are more like Snoogums than they are Food 4 Fishies.

....and now my iPad is auto-correcting stuff to Snoogums...fantastic..

But back to Mario and Luigi. Why are these trademarks so solid? They are Italian first names that aren't entirely uncommon, but a few other factors have turned them into a trademark that can't really be challenged. As a title for a video game about running and jumping onto platforms while chasing mushrooms and saving princesses, "Super Mario Bros." falls into a space sort of in between Snoogums and Food 4 Fishies. It's descriptive insofar as there is a character in it called Mario and the second player is a Bro, but the whole title of Super Mario Bros. doesn't really tell us what's going on. In that way, the character's name helps the product distinguish itself.

But that's not all Mario is in. Mario and Luigi are both Nintendo brands in their own right. Title's like "Mario Party" turn out to be a pretty strong trademark example because of the secondary meaning the name Mario has taken on in the realm of video games. Trademark law and the courts that enforce it want consumers to have faith that what they are buying comes from the source they think it does. If I buy "Mario's Big Adventure," I'm expecting it to have Mario the excitable red and blue wearing plumber from Nintendo in it. If it doesn't, that's a trademark problem. Same with Luigi.

And Nintendo have done a fantastic job cementing the brand identity that shores up their trademarks. Special font, common logo between franchises, distinct visual identity, running-jumping-Charles-Martinet-"Wahoo!"-mushrooms, that whole bit. Does this mean they can make Mario-theme macaroni, go into grocery stores and then tell Mario Batali to get the hell out? A million kinds of no. Secondary meaning only goes so far. 

I swear I thought I was making up the idea of Mario macaroni.
Thanks for making that fever dream come true, 1990s.
So here's the takeaway: Trademark law and building a trademark is about how your product or service is identified to consumers. Stronger trademarks are ones that consumers are only going to associate with your product or service, even if the trademark is complete gibberish. Also, your trademark can become stronger over time based on how much of a market presence you've had over the years and how much your mark has taken root in people's minds, but it's not a great idea to count on that when you're starting out. 

Oh yeah, and we (or at least I) now know that Snoogums is a fun word to type. 

....snoogums snoogums snuoogums....

Friday, September 11, 2015

Donkey Kong-flict: How Nintendo Kept Their First Star Character

The law is a very stoic profession, overall. Sure, the occasional lawyer goes completely bonkers and it makes the news (cocaine's a hell of a drug, as they say), but the actual written things that make up the law are dry and functional. That's why it's so important to savor those precious moments when I can watch a major corporation trying to throw their weight around only to faceplant in manure, wet themselves, and spontaneously catch fire. Some self-destruction is so delicious I am willing to push through page after page of opinion on things that aren't the reason why the judge comes to their conclusion.

I'll always give you guys the original material when I can but be warned that today's case, Universal City Studios v. Nintendo Co. from 1983, is pretty hard to get through once you get a couple paragraphs in. The opening line, "This is a dispute over two gorillas" from Judge Sweet, makes it seem promising, but eventually the extent of Universal's screw up in trying to bring this case just drags it all down. Luckily for me, I don't have to make new law, so I can sit here and Nelson laugh my way through an explanation of how Nintendo got to keep using the name "Donkey Kong" through no fault of their own.

Wednesday, September 9, 2015

Brief: Sympathy for the Judiciary

I'm not a hater by nature. Constructive criticism is one thing, but I'm not one to criticize without at least trying to understand where the person I'm aiming my comments at is coming from. When I wrote about the Game Genie and "Nuke It," I tried to highlight how much of a difference it makes when the judges reviewing a case actually get to know the subject matter. Understanding what made the Game Genie tick was the only way they could have made an informed decision on whether it was a derivative work of Nintendo games. Years later with "Nuke It," the difference between an informed decision and an uniformed one was even easier to see since the appeal took the time to explain the software-based reasons why "Nuke It" worked differently and did different things than the hardware-based Game Genie.

Who would have thought that understanding something made you better at making decisions about it, right? It's so obvious! And for hyperbole's sake, I'm going to say that judges should be required to show that they understand the things they're being asked to make decisions about before they can issue an opinion!

And then I'm going to immediately shoot down that idea because it is impossible and also doesn't give enough credit to what judges are being asked to do when they're given these technology cases. Let's use a comparison story to help you get a feel for their situation:

Imagine you work a boring data entry job for an insurance company or something. One day, a bunch of people from another department run up to you and yell "Quick! We need to you to be the sole decision maker about whether or not it's viable to mine for rare metal on the moon! You need to draft a highly detailed report on your decision in a couple months and only one person can help you. Here are some very long research papers that we wrote on this subject that you've never heard of before. Try not to think about the fact that they will obviously be biased toward our preferred outcome even though they purport to be purely educational documents. Oh and those papers are the only things you can use to educate yourself and if you so much as Google the subject on your own time you're going to get in trouble. Thanks bye!"

"Assuming you even know how to use Google and don't rely exclusively on dusty tomes.
Dusty tomes are against the rules too, by the way." (source)

That's what judges have to do. I'm not saying they need pity or anything (judges themselves probably wouldn't even say that), but I think it helps us understand why some of the decisions they make about electronic media are a little confusing. They were  required to educate themselves on a subject they had no background with and then make really important decisions based on that education. And this happens to them over and over again, and not every judge is going to have the energy or will to become familiar with a brand new topic every few months. Ideally, they would, but realistically you can't expect it. With technology moving forward as quickly as it has been for the last 20 or so years, there is absolutely no way for the judiciary to keep up a working knowledge of this entire field on top of all the other matters they have to stay in the loop about. Even the 9th Circuit, which is where most of the tech and copyright cases end up based on the location of Silicon Valley and Hollywood, can't be specialists since they still have so many other responsibilities. 

I almost hesitate to make this last point, but it's also relevant that the federal judiciary (where nearly all copyright cases are heard) is getting older by the day. Federal judges are appointed for lifetime terms, and it's very difficult to remove them from office for any reason that doesn't include shocking levels of corruption/full-blown cackling supervillainy. Meanwhile, polling shows that about 12% of federal judges are over the age of 80. This might not sound like many until you find out that there are less than 2,000 federal judges total in the United States (there are approximately 318 million Americans, just to give that a bit of perspective). That 12% number also only talks about the ones over 80. If you start looking at 65 and up, the number gets even bigger. I'm only bringing this up because a natural consequence of being a human being is that you eventually just get...well, I'll leave it to Danny Glover to spell it out. No matter what your profession is, no matter how well educated and/or intellectually curious you are, you will eventually get too old to continue giving your full, undivided attention to every new development. 

Let's make this more personal: Do you have a job? Is it in computer science? If it's not, how interested are you in getting sent to a two week boot camp where you essentially take a 300 level computer science course without any warm up? If you are a computer person, how would you like to go to sit through the same amount of time in a law school's administrative law class? That one, I can promise you, is exactly as bad as it sounds. 

Most people will react to that proposal with "I'm too busy for that," or "why would I want to do that, if has nothing to do with my usual field." That's where the judges are with all these technology cases. If you'd gotten to them 20 years ago, maybe they'd be willing to consistently update their knowledge on programming and how that affects software's potential for having its copyright violated. Now? Forget it.

That's why I'm so happy when I get to read an opinion where the judge took that time, educated themselves, and made a better decision because of that effort. It's a bonus when they use language that a normal human being can understand and apply to their future business practices and decision making. But it's also rare. In a perfect world we'd have more decisions that involved a deep dive on the technological intricacies of the subject matter, but we're all only human. No one can learn everything, and when your job is to be able to make decisions about everything, you can only do your best.

Monday, September 7, 2015

Trademark Law: It's Super Effective, But For Whom?

Another piece of recent news to talk about! The Pokemon Company International (PCI), last seen shutting down parties in Seattle, is on the other side of the aisle for this new trademark suit. In the process of bringing their cash cow free-to-play puzzle game, Pokemon Shuffle, to the United States, PCI might not have covered all its bases in making sure they could actually use that name and get a trademark on it.

A notice opposing PCI's application for a trademark on the title "Pokemon Shuffle" was filed on September 1st by the company Cartamundi. Cartamundi is a Belgian company that already has a trademark on the Principal Register of the Patent and Trademark Office (the PTO, as we cool kids call it) of the United States for the word "Shuffle" as the name of an entire line of card games it produces. Before we all stoke the fires of outrage at the idea of someone holding exclusive rights to the word "shuffle," I want to shoot that down. Cartamundi doesn't straight up own the word. It owns the exclusive right to call its line of card games "Shuffle," and a quick lookup of the company shows that they have a lot of licenses with board game properties to make card version of those games. So they have "Shuffle: Monopoly, "Shuffle Trumps," and "Shuffle: Battleship," where "Shuffle" is the product line and the individual product is "Monopoly." Moreover, Cartamundi has apps for Android and iPhone to go with the card games. I know I'd never heard of this company, but I'm pretty sure I've seen some of these things at my local Target. This isn't some troll trying to get that sweet, sweet Pikachu money. They seem like a legit, established business that was here first and genuinely has something to lose if Pokemon Shuffle gets its own trademark..

When a company sees a threat like this, they can't just rely on the fact that they had a trademark first. Honestly, though, that's a hugely important part of winning a trademark suit. Especially if they've had ownership of the mark for 5 or more years. If you were there first and it's been more than 5 years, there is very little the next guy can say to get around that. The Lanham Act, which is the US's primary piece of legislation on trademarks, places a huge emphasis on firstsies. Cartamundi hasn't owned the mark for that long, and only filed for it about a year ago, but first is first.

So the United States government and obnoxious Youtube comments have one more thing in common.
Still, as much as the PTO would love to just be able to make black and white decisions based on who showed up to the office earlier, anyone who's claiming that they're going to be harmed by something has to show what that actual harm is going to be. Parties who want to shut down someone they think is honing in on their trademark territory need a cause of action, and that usually comes down to allegations of either dilution of a famous mark or consumer confusion. We're going to focus on consumer confusion since, if you look at the opposition that was actually filed by Cartamundi, that's what they alleged.

It's pretty much exactly what it says on the tin: the party that got the mark first is alleging that the new user is going to cause people to be confused about who they are buying from. There's supposed to be a consumer protection angle to it, and that's mainly because the law is too old to really contemplate just how many products and services we have out there these days taking out trademarks, and is structured as if anyone who is late to the TM party is some shady business making a knockoff product. That isn't always that case, and it certainly isn't in the case between Cartamundi and PCI. These are both very established companies.

I've spent hours trying to come up with a "TM" joke, but it's just not working.
Have a cheap visual pun instead. (source)
Beyond consumer protection, the real question for deciding whether the mark holder is going to be harmed by the the newcomer causing confusion is: "whether a consumer who is somewhat familiar with the plaintiff's mark would likely be confused when presented with the defendant's mark alone." (that comes straight from the Lanham Act). In our case, we want to be asking whether someone on the app store downloading Pokemon Shuffle would think it was associated with those apps and physical card games being put out by Cartamundi. Cartamundi's argument is that it risks being dragged down by any bad feelings associated with Pokemon Shuffle, and that it might lose customers because of it. 

How do we decide if that's a real risk? By looking at the overlap. On one hand, we have a card game company that calls a product line "Shuffle," a term generally associated with cards, trying to make sure that their products are the ones people think of when they buy something card based called "Shuffle," even if it's a mobile app instead of a physical deck of cards. On the other, we have a company with a multi-media presence that is trying to associate the term "shuffle" with a match-3 style puzzle game based on their intellectual property. That kind of licensed "shuffle" game is exactly what Cartamundi has as its bread and butter, and it's the foundation of their trademark. So when they allege consumer confusion, that's the reason why. Consumers might see "Pokemon Shuffle," and think it's the electronic version of a card game about Pokemon brought to them by the same people who created card games on other properties. They'll download it, see the puzzle game, get confused, and take it out on Cartamundi. 

And then there's the question of how strong PCI's application is. Between Cartamundi getting there first, and the strength of their argument that people will get confused, there's a lot for PCI to overcome if they want to get that trademark but they definitely get the opportunity to try. My reading is that it doesn't look good for the Pokemon Company based on what we've seen so far. They can't even rely on the idea that their use of  the word "shuffle" makes as much thematic sense as Cartamundi's, and courts reviewing patent disputes do look at that sort of thing. What does the word "shuffle" have to do with match-3 puzzles? They could just as easily call it something else and still be successful with their product based on the Pokemon tie-in alone. There's an argument to be made that it's called Pokemon Shuffle in other parts of the world, so giving it a different name in North America would create confusion and harm PCI, but I'm not sure that would be enough to overcome all the factors Cartamundi has in its favor.

It's too early to tell, but if I had to predict, I'd say this was going to go Cartamundi's way. It's odd to think that a company of PCI's size and significance didn't make sure they wouldn't end up in a spot like this before making the application. Unless there's a big piece of information I missed, I really don't see how PCI gets to keep calling its game "Pokemon Shuffle." This one looks ripe for an out of court settlement, but given how established Cartamundi is, I don't know if they'd go for it. In that case, be on the lookout for a name change on Pokemon Shuffle.

And remember, kids! Always check for trademark availability before launching a new product in a major consumer market.

Friday, September 4, 2015

Gearbox Week Finale: Contracting Around Blame

Well it's finally Friday and I can finally stop taking pot shots at the developer responsible for one of my favorite games. I certainly haven't enjoyed doing three whole posts about missteps in Gearbox's history, but I think the outcomes were too important for a blog specifically about law and video games to overlook. I mean, who wants to take swipes, pitiful though they may be, at developers? We all love developers! They're the artists who create new worlds for us to enrich our lives with! Developers aren't the bad guys. It's publishers who exist only to crush the hopes and dreams of creators who just want to bring joy into the world, right?


The problem with reality is that the characterization is really muddled, and we can't really count on the plot lines playing out the way we expect. And the plot line we expect is that publishers are the meddling, money grubbing middle-men who are at best a necessary evil providing the money developers need to make their dreams come true and at worst actively undermine the purity of creators' visions by polluting them with corporate mandates. I agree that it's a really satisfying plot, but it assumes development studios are all wilting flowers unable to exert any control over their own destinies.

So what does it do to our narrative if the developer does have a spine? What does it mean when the developer has more cache in the industry than the publisher? Does it still feel good to think of the publisher as the big bad?

I'm focusing so much on the "heroes and villains" dynamic because our legal system seems tailor made to let the parties fall into those roles. It's so much easier for us to understand the outcome of a suit when we know that the blame has fallen on the bad guy. That feels right. That feels like justice.

Justice is powerful. But you know what else is powerful? Contract law.

And contract law apparently gives you the ability to contract around accepting responsibility for your actions. Just ask Gearbox. Even though a huge amount of the marketing that lead to the "Aliens: Colonial Marines" suit consisted of statements and presentations made by Gearbox itself, their contract with publisher Sega said that it was Sega that would be in charge of the marketing. It doesn't matter that Sega appears to have about as much clout in the industry as a third grader would at an astrophysics conference ("That's a very nice diorama of the solar system, Timmy, but you need to be quiet so the adults can talk."), they're ultimately responsible for the actions of the people the contracted the game out to.

This principle comes up constantly in civil law. It's called "respondeat superior," and yes we lawyers do use the Latin Harry Potter phrases for stuff like this. The idea is that when someone is on the job and they do something in the course of that job that results in a lawsuit, it's the employer who has to answer for it rather than the employee. Let's say there's a truck driver who works for....let's call it "Ball-Mart"...and he's out on the road doing his job driving widgets from one Ball-Mart to another. It's winter, he's going kinda fast, his truck hits a patch of ice, jack-knifes, and clips your car in the process. You are hurt and since this is the United States of America, your health insurance is acting like it's not their job to do something about the medical bills. You get a lawyer for a personal injury suit so you can pay those bills and maybe be able to get some physical therapy later down the road, and it's time to put someone in the defendant slot.

Who do you want on that side of the "vs?" Do you want to be suing the trucker who is probably broke from his own medical bills? Or do you want to sue Ball-Mart which, if nothing else, has insurance that covers this sort of thing and is able to handle this kind of liability while not becoming completely destitute? Well it doesn't matter what you want because the legal system has already said that you can't sue the driver and Ball-Mart has to be who you target.

Does that feel satisfying? If we're looking at assigning blame, it wouldn't. It's the trucker who caused all the damage, so shouldn't he be to blame? Liability isn't the same as blame. We allow people to contract around liability all the time, especially when it's in an employment context.

Like publishers who hire devs on a contract basis to make a game based on an intellectual property license that the publisher owns. See? I got us back to video games!

Sega's still on the hook for the marketing of ACM, even though its been all but admitted the Gearbox did the majority of the questionable marketing. To the courts, it doesn't matter who's to blame. The court only cares who's liable. I think this is important and wanted to call it out because this might be one more excuse for publishers to essentially put a gag on developers instead of letting them talk about their games. Gearbox was getting more leeway with the marketing of ACM than their contract apparently accounted for, but that itself isn't too weird. Parties push the boundaries of their contracts all the time, and as long as no one cares, they can get away with it. But I have a feeling that publishers are going to care a hell of a lot more now.

I think the interplay between developer and publisher in the ACM suit is going to have a ripple effect. Even if Gearbox got away with it this time, a less established developer probably isn't now. Whatever freedom they may have been able to keep for themselves before might not be so available to them now that publishers can see what happens as a result of that freedom. It may not look like much now, but lessons were learned. I just think they were learned by the scariest people possible.

Wednesday, September 2, 2015

Gearbox Week: Trimming the EULA's Claws

I really only expected to have two pieces for what I've been referring to as "Gearbox Week," which I'll admit isn't much of a "week." Fortunately, I took a closer look at one of the Orders that came out in Perrine v. Sega of America, Inc. (that's the official name of the big suit about Aliens: Colonial Marines being fraudulently marketed) and found something that might be important in the future.

People have been discussing this suit and it might end up being a turning point for how video games are marketed from now on. This is the most obvious issue, and the one we can get good and mad about, but since I'm a minutia loving nerd I've been focused on this one section from an old order back when Gearbox hadn't been dismissed from the suit yet. To me, this section says a lot about how those cryptic, seemingly all-encompassing EULAs we all blindly agree to are going to be treated when push comes to shove.

Speaking of cryptic, I need to stop burying the lead and just cite the text:
The Court finds "Licensed Works" to mean the "online features of Gearbox games and products." 
To me, that's a bomb going off. Developers and publishers might not be able to control how people use their product post-sale with quite the iron fist it seemed they had. This is a really narrow definition for a term that shows up in most video game EULAs and in context looks like it's trying to talk about a lot more than online content. Hell, Gearbox even argued that in their motion. They said in their filings that "licensed works" meant "Gearbox games and products," so when their EULA said  "Gearbox may limit or prohibit access to the Licensed Works in its discretion," they wanted it to mean that they could shut off your access to the game itself. The judge rejected that definition and said that it meant only the online stuff because Gearbox could control that with login credentials.

That sounds awesome, right? A company thought they had the right to yank a game out from under people through the terms of their EULA that they know no one reads, but now they can't. What could be bad about that?

Don't get me wrong. I love the narrow definition. I'm just less enthused about how the judge came to that decision because it looks like it came from a less than fully up-to-date place. His big point for why it would be impossible for Gearbox's "licensed works" definition to include the game itself was "Gearbox definitely does not have the right to go into consumers' homes and remove their copies of ACM."

We're right back to an over-reliance on physical objects to base decision on rights of the consumer. I don't know about you guys, but I can count on one hand the number of actual game discs/cartridges I've bought this year on one hand. What if there weren't actual discs of A:CM out there? Would the judge have decided differently? Would he have thought Gearbox had the right to keep the buyer away from the game they purchased then?

The bigger issue to me, though, is how this narrow definition separates the idea of the game from its online aspects as if they're two totally different things. Nope.Two words, Your Honor: SimCity 2013.

More and more, the games we buy ARE online features, even when it barely makes sense. Where do you draw the line between "game" and "online feature" for something like Destiny? Sure, you bought the physical Destiny disc, but you can't do anything with it unless it can constantly talk to the Bungie mother-ship over the internet. Even without an "always online" component, you can't really avoid "online features." I go out and buy a physical copy of Pokemon Y-Fire-Alpha-Heart, pop it into my 3DS, and promptly can't do anything until I let it go online and get the update. The update is not optional. The game will put its metaphorical hands on its metaphorical hips and stubbornly wait for me to press the A button and accept the update. This is the new normal. 

And there is not enough time left before the inevitable heat death of the sun for me to get into games like Hearthstone and League of Legends and how they fit into this mess.

To wrap this up, that line from the judge's order might be really important to establishing and protecting the rights of consumers when they buy software that comes with these really broad EULAs attached. On the other hand, the same line might have already been rendered irrelevant by the constantly thinning line between "game" as a stand-alone product and "game" as an every evolving service whose provider can deny access to at any moment through login rights.

Something to think about next time the game you're playing asks if you want to activate the online features.