How Did I Get Here?
I've been a gamer since I can remember, and I jumped at the chance to become part of the industry when I could. I worked at Large Animal Games in New York City, and really learned a lot under the excellent game designers who worked and ran that company. I decided to switch from an ultimate goal of litigating criminal law (I honestly can't remember why I wanted to do that) to working in the game industry from the legal side. I saw firsthand the atrocities being committed by larger companies, and I knew I could make a living and make a difference by pursuing video game law.
What the Heck is Video Game Law?
It's the age old saying, "you wouldn't go to a foot doctor for heart surgery," that rings true here: "You shouldn't go to a movie attorney for video games." To the uninitiated, games are games. However, to the creators and players, there are a near limitless array of genres, distribution platforms, and audiences. The trick, as an attorney, is using the archaic laws that surround the industry to protect the new and innovative ideas coming out each and every day from exciting startups.
Now, of course, video game law is really a lot of different areas of law, all within the context of video games. Still, that context is very important and can be crucial when choosing contract language or arguing an office action from the United States Patent and Trademark Office.
Who Are Your Clients?
Each year it becomes cheaper and easier to create a game or an app, and each year more and more companies are popping up all over the country. Because of that, there is a growing client base that has been for the most part unrepresented. Larger firms charge rates that are not attainable to these smaller studios, and attorneys who started the niche area of game law, like Tom Buscaglia, can't do everything themselves.
The biggest hurdle as an attorney focused in the tech and game field is that most startups don't even consider needing a lawyer. It's not that they are against the idea, it's that the thought has literally never crossed their mind. It unfortunately leads to a lot of investors taking advantage of the "little guys" with good ideas, or it leads to the end of friendships and the start of long and expensive legal battles down the road.
I've spent near countless hours over at Reddit.com trying to educate the community on their legal rights and what they should be doing to operate their businesses confidently and legally. I have been astounded at just how loud and clear that message has been heard. I would have been happy for them to just know the difference between a trademark and a copyright, but now half of the reader base is asking complex questions most lawyers would have to spend a few hours researching. It's beautiful!
Now, of course, the difference between these companies knowing the law and being able to utilize the law are very different things. The fear of legal fees is just too much for these tech startups with a few thousand dollars and a dream. To combat that, we are starting to see a lot of flat fee rates being offered, as well as severely reduced (or free) rates for communication. As the tech field grows, the legal field is starting to become more approachable. Lawyers are notoriously against change, but we can't sit with our arms crossed as the rest of the world flies by. (I mean, come on, are you still having clients use a pen to sign a retainer?)
What Are the Main Legal Concerns For Game Companies?
My usual list for most companies is to:
- Form independent contractor agreements (as most startups hire a lot of freelancers);
- Trademark your game/app and company name;
The age of patent trolls is still here, however trademark trolls are starting to become much more of an issue for startups. My favorite example to use is the fiasco surrounding King, makers of Candy Crush Saga, and their overreaching trademarks that border on the ridiculous. The term "saga" has existed in nerd culture as long as the term trekkies, and it encompasses a feeling of an epic or long story where a small band of heroes struggles against an impossible foe. Or, according to the USPTO and King, "saga" means a simple mobile phone game that is just a re-skinned clone of every "match 3" game before it. Exciting...
Regardless, the issue here was that, to a trademark examiner (and our law), there is no difference between a huge story-driven game that is playable only on your computer, and a beyond simple phone app. It would be like comparing the Titanic movie to a home movie of your toddler splashing in a pool. To prevent these problems, it's important to not only trademark your own titles, but to stand up to these million dollar companies when they start waving their bank account around to knock you out of the marketplace.
Another issue facing the game world is the fact that freelancers retain ownership of all intellectual property they create, absent an agreement. Since formal contracts and legal advice have been so long removed from the game world, it has led to a lot of big problems about who exactly owns what. That's why one of the first things these companies need is a proper IC Agreement. I've been very happy to see it start to become the "norm."
How Can I Join the Video Game Law World?
I get asked this a lot, and I don't really have a good answer for it. I don't have any secrets to break into the industry because I just opened my own firm, branded myself a video game lawyer, and went to battle for some bullied startups that couldn't afford legal help. It wasn't a marketing strategy, but it turned into the best advertising I could have ever done. I now have clients writing me theme songs and drawing pictures of me as a super hero, and I wouldn't trade careers with anyone in the world. If you are a gamer and you are passionate about helping the industry, come on board and let's fix what's been done wrong. If you are looking to make a quick buck off a few startups, pick another field. You aren't welcome here.