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Video Games and the Jurassic future – the legal issues

Confession is good for the soul so let’s start with my admission that I am a scrabble addict. Whilst that idea may not set your pulses racing, it points to an obsession with words and that, as you will see below, is a fundamental requirement in the context of video game legals. The multi-dimensional world of video games entails myriad, inter-linking legal issues. This is anticipated to reach a new zenith next year with the launch of Jurassic World Evolution. Who would have thought that dinosaurs would be shaping the legal agenda in 2018?

Rather than bore you with extensive legalities, I will briefly highlight some of the key legal issues and leave you to ponder and contact me should any alarm bells start to sound.

Intellectual Property Rights (IPR)
• You need to protect your work and/or investment. This is mainly about copyright and database rights. Make sure you get assignments from anyone from whom you have bought or commissioned any code, graphics, sound effects or any other creative input.
• Patents may be relevant but the originality barrier is high and will require specialist assessment to determine if you have any qualifying ideas or concepts.
• Trademarks and domain names are generally more straightforward as they protect/reflect brands and names rather than underlying code and concepts. However, you will need to consider not only what you can protect but also whether what you have in mind might infringe third party rights. For that reason, it is advisable to run some clearance searches before you invest in your brand/developing your game; running a search on Google is a start.
• If you are planning to depict any people in a game, you will typically need to procure releases from the rights holders and failure to do so may result in “passing off” or other actions against you.
• Where there are in-game purchases, there may be further IPR ownership, licensing and infringement issues where the purchases of virtual goods/accessories are branded by the IPR owners or used without the owner’s permission.
• Another important area of IPR relates to design rights which may offer a route to protection of GUI and multiple visual elements.
• The use of open source in the creation process may undermine any claim to IPR protection by the game’s developers. Careful attention needs to be paid to governing open source licences such as the GNU family to see what impact the use of open source code might entail.
• Where the developers incorporate existing music or other audio or visual rights, permission or clearance will need to be sought/negotiated to clear any rights in the sounds recording and the musical composition (i.e. music and lyrics). Clearance will need to be sought from the record label and the publisher or collective right management organisation such as the PRS in the UK.

Terms and Conditions (T&C) and Data Protection
Not only do you need T&C which regulate use of your game and distribution agreements with your channel but also other sets of terms covering your use of gamers’ personal data and the cookies you or third parties place on their systems as well as an Acceptable Use Policy for in-game messaging. The privacy issue becomes exponentially more crucial next May when the new general data protection regulation (GDPR) enters force. Maximum fines for data breaches will rise from £500k to the higher of 4% of worldwide turnover or E20m. This means that it is paramount that you have in place appropriate, state of the art technology to prevent compromise or hacking of your subscribers’ personal details.

Gambling and Social Gaming
There has been considerable coverage of failures by gambling operators properly to demarcate between social gaming and gambling. The Sunday Times recently reported that some of Britain’s biggest gambling operators are targeting children with their favourite cartoon and storybook characters in online betting games, and that gambling operators are exploiting a legal loophole to promote games that appeal to children without breaching Gambling Commission rules. By way of example, they cited 888 website’s Jack and the Beanstalk game, which had a minimum bet of 20p and a maximum of £200, and Paddy Power’s Peter Pan game. Everyone involved in the gaming sector needs to be very careful not to overstep this mark.

Advertising
The video games industry has its own system of formal self-regulation to keep children safer offline and online: the PEGI (Pan-European Game Information) age rating system. In particular, publishers are required to follow PEGI’s Labelling and Advertising Guide (“the Guidelines”) to ensure the age rating icons and descriptors are displayed to consumers prior to purchase of both disc-based and online games. Game advertising is also subject to the CAP Guidance on advertisements for Video Games and Films as well as the CAP and BCAP Codes. When developing your game it is important to consider (if necessary) both age verification services and parental controls.

For further information please contact Simon Halberstam at [email protected], head of the technology law team at Simons Muirhead & Burton or Anne Rose, associate in the technology law team at [email protected]