Common Legal Challenges in Video Games: Why a Specialized Video Game Lawyer?
As gaming has evolved and expanded, it has inevitably encountered numerous legal challenges, some of which have been answered and others still living in the grey area of legal uncertainty. Understanding these issues and their interactions with industry practices is essential for developers, publishers and players alike. In this article, we will be looking at some of the most common legal challenges in video game development and how an experienced lawyer can help you navigate them. Other articles on our website provide you with more practical guidance on how to address specific issues, but this article provides a broad outline of issues you as a game developer may encounter.
Publishing, Distribution and License Agreements
Development and distribution of video games almost always involves an array of complex contracts: Lengthy publishing agreements, contractor agreements, music and other third-party content rights, IP ownership, merch deals, and specialized distribution agreements form but a small part of the net of contracts needed to take an idea from the first empty project file to released game. By far the biggest legal issue plaguing developers (especially smaller ones) is poorly drafted or misunderstood contracts, which lead to disputes through misunderstandings, loss of ownership and rights, unintended outcomes, and future liabilities which may ultimately end up shuttering the company.
While the gaming space is economically large, from a legal perspective it is still niche and very much a specialized field, and understanding it takes years of practical experience in the field. To navigate the applicable agreements, both drafting and redrafting them, as well as to explaining their contents so as to enable developers to form realistic understanding and projections, a lawyer specialized in the field is necessary.
Intellectual Property Disputes
Video games are deeply rooted in creativity, making intellectual property (IP) issues and questions a frequent legal hurdle. Problems often arise around copyright infringement, trademarks, with some questions concerning patents as well (though typically less relevant than some developers may believe or hope). Developers might inadvertently create characters or storylines similar to existing intellectual property, or contractors may turn out to steal other companies existing IP, leading to costly litigation; in addition, other developers may be infringing one's own property. Securing trademarks for distinctive names and logos is vital, as failing to do so can result in expensive rebranding or legal penalties.
A Lawyer specialized in gaming law can help protect your IP and interests through careful intellectual property strategies, consultations on the limits of copyright, drafting of so-called cease and desist letters and contractual protection against liability for subcontractors' infringement.
Privacy and Data Protection
In the modern online landscape, practically all service providers leverage user data to one extent or another for the development of their services, user experience and monetization. This can be used to great effect, and to the genuine benefit of the user as well as the service provider, but it must also be coupled with strategies regarding player privacy and data protection. Regulatory compliance, especially with GDPR in Europe and CCPA in California, is of crucial importance. Game developers often collect significant amounts of personal data, including age, location, contact information and financial information, to facilitate purchases and online interactions. Some developers believe that the use of middle-hands, such as sales through platforms (e.g. Steam, Epic Games Store, Google Play Store or Apple App Store) removes the need for regulatory compliance: this is unfortunately rarely true.
A lawyer specialized in video games understands the specific interactions between video game developers and privacy regulations and can help ensure compliance by crafting tailor-made privacy policies etc., which take into account the special categories of personal data which tend to be relevant for game development, as well as help developers find where the lines are drawn.
Content Moderation and User-Generated Content
User-generated content (UGC) has become a cornerstone of many modern games, from mods and custom skins to streaming and esports events and serves as a fantastic way for users to truly integrate themselves with games they love. However, this content introduces significant legal risks regarding copyright infringement, hate speech, harassment, and inappropriate material.
An experienced gaming lawyer can help develop effective Terms of Services, EULAs or similar legal documents which introduce moderation policies, user rights and obligations, copyright regulation, and which balances user experience and freedom of expression with legal compliance, minimizing the risks and potential liabilities associated with UGC.
Conclusion
The legal landscape of video game development provides plenty of potholes and trenches, but with a lawyer experienced in its peculiarities you not only gain a helping hand to guide you through the minefield ahead, you get someone who understand the specifics of your industry, your business, and the particular issues and problems you face; someone who can combine theoretical knowledge of the law with practical knowledge of the real world you’re in.
