Video game developers can’t do anything without getting sued these days—even when the opposing party is dead.

In the latest video game right of publicity lawsuit, CMG Worldwide Inc. has filed a complaint against California based Maximum Games LLC, on behalf of General George Patton’s estate. [1] Maximum’s History, Legends of War: Patton is a turn-based game featuring the legendary World War II commander of the American Third and Seventh Armies. Interestingly, Patton has been dead for sixty-nine years, one year shy of California’s seventy-year statutory limit for right of publicity lawsuits. [2]

So how is it that someone can sue nearly seven decades after death?


While at E3 this year, I dove into an impressive undersea world using the new Oculus Rift headset. Simultaneously, I thought about the gallons of hot water that Palmer Luckey, the company’s founder, must be swimming in now that ZeniMax Media has filed a lawsuit against him, alleging, among other claims, copyright infringement and misappropriation of trade secrets. [1]

It also occurred to me that anyone working in a creative or technical field could easily find themselves in a similar situation.

Space Invaders—the video game that effectively set the interactive entertainment industry on fire—turned thirty-five this year. 

And thirty-five is a magic number when it comes to copyright termination. Thirty-five is effectively Cinderella’s midnight for hundreds, perhaps thousands, of music, book, film, and video game publishers who believe they have secured the intellectual property rights to another’s work indefinitely.

What may surprise them (and you) is that in 1976 Congress amended Section 203 of the United States Copyright Act, allowing authors of works published after 1978 to reclaim the rights to their creations.  And, in some instances, these rights extend to video games.


If you’ve worked in the videogame industry for any length of time, you’ve undoubtedly come across legal language similar to this:

The Game and all other Intellectual Property that the Developer creates in connection with the services provided under this Agreement shall be considered work made for hire, and shall therefore be the sole and exclusive property of Publisher from the time of creation.


The decision in ReDigi v. Capitol Records probably means that you can't resell your digitally downloaded video games—but for reasons that may surprise you. 

Right of Publicity in Video games

Earlier this year I discussed Keller v. EA, a right of publicity case [1] that was appealed by EA to the Ninth Circuit Court, primarily on the basis of a First Amendment Right to use NCAA player likenesses in their college football games. The Ninth Circuit issued its opinion yesterday, holding against EA, in what may prove to be a fatal and perhaps final blow in EA's self-proclaimed right to use sports figure likenesses in a game without express permission.


 How Do You Make Sure Your Idea is Safe?

A few days ago, I posted a message on Linked In, offering to answer a few legal questions posted by app and video game developers. I've been nearly overwhelmed with questions!  So here's the answer to the first from a developer who asked:

In the ever-changing world of high tech intellectual property law, the word “Platform” has special meaning. More often than not, you’ll find it in software licensing agreements to specify, and more importantly to limit, the computing systems that a particular piece of code—whether a video game or accounting program or iPhone App—are authorized to run on. But these days, Platform can mean just about anything. 

Creating a bulletproof corporate shield.
A recent Game Developer’s Conference study found, unsurprisingly, that 53% of the attendees they polled identified themselves as indie developers, with nearly the same percentage saying that they work in companies with ten or fewer people. [1]

With the explosion of mobile and casual gaming, this has created exciting times for entrepreneurs, but the reality is that most independent game developers lack the legal expertise necessary to navigate this new publishing world. Many will make it through unscathed. Others, unfortunately, won’t be as lucky.

Used by permission. Shutterstock.
Until recently, video game developers generally focused on the creative and technical aspects of developing an interactive game, while their publishers handled issues of sales, marketing, and legal. But in the world of direct-to-consumer digital distribution, indies do both. They build apps, and then manage sales and marketing through Apple’s App Store and Google Play, and inside environments like Steam and Xbox Live. While all this has created significant opportunities for thousands of emerging game developers, few realize the legal hazards they undertake when launching a game—risks that their former publishing partners often assumed on their behalf. 

In this two-part series (find part two here), we’ll discuss what I consider the top six legal mistakes app developers make when launching a new game in the digital marketplace.