>Having only recently rid itself of Gibson Guitar Corp.’s Guitar Hero-based patent infringement lawsuit, Activision probably expected to be able to put away the aspirin for a while. Instead, the game development and distribution giant is facing another headache-inducing suit, this one filed by established pop/rock band No Doubt, which was none-too-pleased to discover that their likenesses are available for use as playable character avatars throughout Activision’s new release, Band Hero. The band’s complaint, filed November 4, claims damages for breach of contract, fraudulent inducement and infringement of right of publicity, as well as violations of California’s Business and Professions Code, in connection with No Doubt’s license agreement with Activision. (Case No. BC425268, in the Superior Court of the State of California for the County of Los Angeles.) According to the band, No Doubt entered into a limited license agreement with Activision in May 2009 with the understanding that the… Continue Reading
>The end of October brought a flurry of legal activity relevant to two of the more notable segments of the current generation of video game technology: Nintendo has finally settled out of a U.S. International Trade Commission investigation concerning its Wii Remote, and the game developers and retailers that were sued by Gibson Guitar Corporation over the popular Guitar Hero and Rock Band games have made a move to dispose of Gibson’s remaining infringement claims. On October 5, the administrative law judge presiding over the ITC’s investigation of the Wii Remote issued an initial determination (ITC court ruling), later upheld by the Commission, that the settlement reached by Nintendo and Hillcrest Laboratories Inc. satisfactorily disposed of the dispute between the parties. Hillcrest, a developer of home entertainment technologies, claimed that the operation of Nintendo’s Wii Remote in combination with the Wii video game console infringed a collection of Hillcrest patents… Continue Reading
>The purchase of intellectual property is always a complicated transaction, which can easily blow up on the participants if not handled carefully. Bethesda Softworks found how easily things can go wrong last month when it sued Interplay over the purchase of the Fallout IP. Bethesda’s suit accuses Interplay of breach of contract and trademark infringement for not abiding by various provisions in the purchase and license agreements detailing Bethesda’s purchase of the Fallout IP from Interplay in April, 2007. Under these purchase and license agreements, Bethesda bought the exclusive rights to the Fallout game and associated trademarks for $5.75 million. Interplay then licensed back several types of limited rights from Bethesda. One provision in the agreements said that Interplay would have the right to develop a Fallout MMORPG if it could raise $30 million in funding by the end of March 2009. Bethesda claims such fund-raising did not occur, but… Continue Reading
>An interesting opinion denying a preliminary injunction in a software development case has just come out of the Eastern District of Washington. The defendant company, bVisual, was sued for copyright infringement by Numbers Licensing, an independent developer hired by bVisual to do software development work. Committing a surprisingly common error, bVisual failed to get a signed, written agreement with Numbers Licensing that placed ownership rights in the source code with bVisual. Therefore, when the two parties later got involved in litigation, the court found that the developer still owned the copyright in the developed source code on bVisual’s computers.However, all was not lost for the defendant, as the court also found that bVisual had an implied license to continue using and modifying the source code. The court found that the relationship between the parties, the defendant’s payment of a substantial amount of money for the software, and the fact the… Continue Reading
>A new case was handed down out of the Sixth Circuit last week that dealt with software licensing. In this case, a company had licensed some software, and the license agreement contained some of the standard non-assignment language: that the license was non-transferable and that the licensee could not transfer its rights without the approval of the licensor. The licensee underwent some corporate reorganization — it was merged into a new entity. The key thing here is that the merger was *not* with a third party entity or as part of buying assets. This case stemmed simply from a parent company consolidating a set of wholly-owned subsidiaries. However, even though, pre- and post-merger, the software sat on the same computer, doing the same thing, at the same location, the surviving entity was in violation of the software license as a result of the merger.So, two tips for all of the… Continue Reading
>I was out at the Game Developers Convention in Austin last week. I had a great time and wish I could have met more folks. I’ll have some notes and observations on trends that I gathered from the festivities that I’ll be rolling out soon, but the one thing that really caught my eye was the extreme interest in the “Free to Play (with a heaping helping of microtransactions)” business model. My personal thought is that its going to get crowded online with everyone scrambling to attract their preferred gender/age demographic, while at the same time not having minimal (or no) revenue stream. Plus, if you are one of the lucky newcomers to have That Certain Something, what steps are you taking to prevent the existing games from simply adding That Certain Something as a game mode/feature to their own game?
>On September 2, EA filed for declaratory judgment against Dillinger, LLC (the entity claiming to hold all publicity rights relating to the late and notorious John Dillinger), seeking validation of EA’s claim that its family of “Godfather”-themed games do not misappropriate any publicity or trademark rights in the Dillinger name. The Dillinger clan was originally riled over the inclusion of the “Dillinger Tommy Gun” as a weapon option in the first “Godfather” game (released in 2006) and took further exception to the updated “Modern Dillinger” firearm available in the 2009 sequel. According to EA’s complaint, Dillinger, LLC contacted EA on July 22, 2009 – the 75-year anniversary of John Dillinger’s shooting death in Chicago – and demanded “millions of dollars for the game elements purportedly covered by its publicity right[s] and trademarks.” In the compaint, EA alleges that its use of any reference to John Dillinger is transformative within the… Continue Reading
>After settling with Microsoft for an undisclosed amount, Paltalk has set it sights on Sony, alleging Sony is also infringing its patents related to online gameplay.Back in 2006, Paltalk sued Microsoft on nearly identical grounds, alleging that certain communications between game systems over the internet infringe two of its patents, 5,822,523 and 6,226,686. These two patents describe a method of increasing bandwidth efficiency between a group of computers communicating on a network. The method involves a central messaging server programmed to receive messages from each computer on the network and to maintain a list of the computers on the network. The patents also describe a method for sending “join” messages to other computers to invite them into a game. Lastly, the patents describe a method for aggregating messages received by the central messaging server in a block and then pushing the aggregated message block back to the other computers. Paltalk… Continue Reading
>My apologies on the hiatus. We’ve been caught up in a few deals, but there’s some great content in the works and we’ll be back with our regular posts, tips and updates. I hope to run into folks at the Game Developer’s Conference later this month in Austin, Texas. It looks like it should be an interesting event.
>A favorite topic of discussion for many of the authors of this blog is virtual game worlds and virtual property. According to a recent online survey, about 10% of Americans spent real world money on virtual goods last year, the average tab being about $30. Granted, the survey results may be a bit skewed, since the participants were polled online, and thus more likely to be involved in virtual worlds and more comfortable with online transactions. However, despite its limitations, this survey adds insight to consumer spending behavior that is projected to lead to about $1 billion in sales of virtual goods worldwide this year. So, why spend real money for intangible digital items that you don’t really own? Well, the central goal of almost every player in a virtual game world is to acquire virtual assets that increase an avatar’s abilities or status within the game world. Virtual game… Continue Reading