The Fenwick & West and Berkeley Center for Law & Technology 2018 Gaming Summit in San Francisco brought together a combination of in-house and outside gaming counsel for a panel on intellectual property and legal considerations in the industry.
Panelist Dan Nabel, principal counsel of League of Legends-creator Riot Games, said concerns over cloning games have been on his radar recently. Cloners create similar versions of already existing games, often generating revenue from ads they place within the copied version.
“Cloners are getting way more sophisticated because they’re getting way more money. So now that we have this skyrocketing business, you have way more sophistication in the space, which makes things way more challenging to deal with, I think particularly for smaller companies,” Nabel said.
Nabel said that in order to get clones taken off gaming platforms, lawyers often have to produce thousand-page documents with side by side comparisons of the two games. That’s in part because one similarity on its own may not show the two games are clones, but taken as a whole the aesthetics or gameplay are noticeably alike.
It’s also been a challenge to replicate the way that gameplay is similar, especially in court, he said.
Another panelist, Chrissie Scelsi, the U.S. General Counsel for Wargaming (USA), Inc., agreed, and said it’s helpful to be able to show comparisons of the two games via gameplay.
“If you have a case with [cloning], the best thing you can do is not only get the game, but whatever platform it’s on in front of the judge, and more importantly their clerk, as quickly as possible so that they see it, and they can have that side by side,” Scelsi said.
One member of Fenwick’s gaming team, partner and moderator Eric Ball, said that he’s asked judges to play the games in question during cloning cases, as a way to see the similarities in gameplay. But that’s a fine line to walk, he said, as concerns have been raised that a judge playing the game itself could constitute a judge conducting their own research.
Panelists also discussed the next level of legal challenges for the gaming industry.
The FTC’s stance “regarding influencers and how to disclose sponsorship and how…the practice is playing out with regard to use of influencers and publicity in gaming,” said Sara Stapleton, the founder of Stapleton Legal & Consulting and a former vice president of acquisition and business affairs at social game developer Zynga Inc.
Scelsi said that’s an issue she’s also been watching, especially when it comes to streamers on platforms such as Twitch, where its still unclear how often a streamer has to mention content is sponsored.
Nabel said that he’s been watching growing concern over IP and players producing art or other creations based on games.
“Too many game companies just sometimes draw bright lines and say ‘That’s our IP don’t touch it, you can’t make money from it,’ but I think that’s a big mistake,” he said.