Let’s play… or what does a Latin American dictator have to do with a virtual sword and what does the law say about all this?

Many people associate video games with computer programs. A common approach reduces the legal issue of video games to the analysis of the provisions of the Copyright Act in the scope of Section 7 of the Act – i.e. special rules regarding computer programs. In the case of modern games, this approach is, however, too simplistic. If we would like to remain within the confines of the Copyright Act, we should remember not only about the source code, but also about the interface, audiovisual sequences, music, plot script, and not to mention the box graphics and prints on CDs.

Regardless of the copyright aspect, attention should also be drawn to the creative and non-creative databases, company secrets, know-how, trademarks, image protection, privacy and any other personal rights and the so called “virtual property”.

When analyzing this matter, we should look at the law from the perspective of a video game and not the other way round. The purpose of this post is to explain the legal issues related to video games – beyond the copyright itself.

Creating a video game is highly time-consuming and expensive. In the course of development, several creations of human intellect emerge. They may constitute valuable know-how, necessitating a special legal protection provided by the Act on Combating Unfair Competition – in particular, if such creations themselves are not subject to the protection of exclusive rights, e.g. pursuant to the Copyright Act. All information regarding prices, distributors, sale policies, launch date, promotion plan and scheme as well as concluded agreements may constitute a company secret. But even the bare idea of creating an innovative video game may be such a secret. We would like to point your attention to the success of one of the most recent Polish video games named “This War of Mine ”, published by “11 bit studios”. It is a game about war in which the player takes on the role of a civilian struggling to survive in the turmoil. Due to the fact that the idea itself is not protected under the Copyright Act, it is important to keep it secret during the development of a video game.

Another important element of promotion and production of a video game is its identification among consumers and securing a form of exclusivity for using specific expressions. For example, trademarks registered on various territories may be used for this purpose. In the case of video games, such trademarks include the publisher’s, producer’s or developer’s business name as well as the title of the video game and the designation of the very characteristic world in which the plot takes place and the names of the main characters.

Moreover, video games frequently present recreations of actual events with real people. In such cases, creators – if they wish to feature a specific real person in their production – as a rule have to obtain consent for using the image or for the intrusion into his or her privacy so as not to put themselves at risk of infringing personal rights of the character in their video game. This, however, does not form an absolute rule as the former dictator of Panama Manuel Noriega – having lost his battle before the American court with Activision Blizzard, the producer of „Call of Duty: Black Ops II” video game – experienced this first hand. The main reason why the court ruled in favor of the creators of Call of Duty was the conviction that the freedom of speech prevails over the rights of the dictator whose reputation, due to his past actions, was already tarnished and it would be difficult – as the Judge observed – to tarnish it even more.

One of the topics that has most recently arisen in jurisprudence is the issue of “virtual property”. Some games, especially from MMORPG (massively multiplayer online role-playing game) genre, enable the creation of character avatars featuring individual traits acquired in the course of time-consuming and costly game play. This is reflected in their calculable economic value, which is confirmed by high prices fetched on Internet auctions for certain items used in video games as well as by the characters themselves – often reaching as much as several thousand Polish zlotys. “Virtual property” has also been the subject of court disputes. In Poland a considerable stir was caused in case II K 127/10 conducted in the District Court in Sławno where one of the gamers was accused of hacking someone else’s account and then deleting all items used in the Metin 2 video game. The charges were based on Article 287 of the Penal Code which deals with computer fraud offenses. The District Court in Sławno in its judgment sentenced the defendant to one year of restriction of freedom conditionally suspended for three years and imposed a fine in the amount of 200 PLN. An interesting decision was issued on the other side of the globe – in South Korea – where a 64 year old woman sued NCSoft studio responsible for the Lineage video game for losing a (virtual) sword worth 28 thousand (real) dollars…

Should virtual property be treated like a “work-product”? Or is it merely the game’s source code created by the game’s producer? Could this matter be approached by analogy to the traditional property rights of items? What if “virtual property” becomes such a part of the video game that is not created by the producer but by the gamer? How does its existence in the video game influence the rights of producers and other players? This, however, is a story for a whole other post…

[Krzysztof1]To jest „This War of Mine”, nie „The War of Mine”.