Monthly Archives: May 2014


That’s right. Loading Law, in a joint venture with the fine people of Game Dev Law, will be speaking at Indy Pop Con this weekend.  We will be hosting a panel, Heroes, Trolls, and Game Changers: Video Game Law Dungeon Crawl, on Friday, May 30th at 3pm in Room 140. Drop by to hear us discuss how the latest developments in video game intellectual property law are affecting indie developers and startup studios.

Stick around Saturday (and possibly Sunday) as well to hear Loading Law contributor Suzanne Jackiw discuss console and indie publishing.

Buy your passes here!

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The Tricky Business of NDAs

May 23, 2014 | Suzanne Jackiw

OculusRift1ZeniMax recently challenged Oculus VR over unspecified technology used in the Oculus Rift.

ZeniMax claims that Oculus breached its duty to hold technical information confidential by integrating it into their own product. This would have occurred when John Carmack left id Software, a subsidiary of ZeniMax, to join Oculus. At that time, Oculus would have had access to ZeniMax technology in the early stages of Oculus development, as well as the veritable library of know-how Carmack developed during his time at id.

ZeniMax may be right. Employers generally own work produced by their employees within certain restrictions. These ownership rights are usually further bolstered within employment contracts by explicit assignments. In many cases, if you work on something while employed at a particular company, the company owns that work product. id Software claims that Carmack’s contract contained just such a clause. Under that type of contract, if he was working on a project anything he made belongs to id Software, unless an explicit exception was made. Continue reading…

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Not_Sure_if_ArtFan conventions are a place for industry professionals, celebrities, and pop culture icons to interact with their fans directly and bless the lucky few with autographs. Cons also offer independent artists an opportunity to display their portfolios and sell their wares directly to a dedicated consumer base. The most popular fan art pieces at comic book conventions are typically unlicensed fan-art of super heroes, pop culture characters, and video game icons. When visiting C2E2 last month, I witnessed an intriguing convergence of a pop icon and pop art which had perplexing legal implications.

While visiting C2E2 I met a young woman who had won the opportunity to get an autograph from the marvelous all-father of comics, Stan Lee. She explained that she was ecstatic to win, but terrified as well because initially she had nothing with her for Stan Lee to sign. In a rush, she bought the first thing she could find in the fan artists’ block that had Spider Man on it. What she ended up with was a print of the Spider Man Desk internet meme (the image that accompanies this article). Surprisingly, Stan Lee had no problem signing the suggestive print – offering his signature and a laugh with an exclamation of “Excelsior!”

First off, that is downright awesome and hilarious. God bless Stan Lee for loving his fans enough to sign a piece of art lampooning one of his own beloved characters. However, in doing so Stan Lee effectively endorsed a piece of artwork infringing on his own intellectual property – the very kind of fan art that receives cease and desist letters from Marvel every day. Not knowing anything about copyright law, my new friend was just thrilled she had met Stan Lee and had a cool autographed picture to prove it. Me on the other hand…my brain hurt.

The images, characters, and even character histories of our favorite comic book and video game characters are protected under copyright laws. Large companies like Marvel zealously enforce their copyrights rights to both quash competition and to increase their own licensing revenue. Though actively protecting its copyrights is good for Marvel’s bottom line, it often comes at the expense of alienating its dedicated fan base who produce and distribute unlicensed fan art. The end result is a duplicitous balancing act that is the most obvious at fan conventions. On the weekend at fan conventions across the country, copyright holders like Marvel share a common space with and praise the fan art they will be planning litigation against on Monday.

Copyright enforcement usually begins a cease and desist letter like this. The copyright holder puts the infringing work’s owner on notice of their infringement and can typically threaten litigation or offer sale of a license to the infringer. The infringer can then either fold or fight. Purchasing a license or calling it quits is the fastest resolution for small time infringers, but for those in for the long haul there are numerous frameworks for the defense for infringing works. The most common defenses to copyright infringement that are relevant to most comic and video game fan art are fair use, parody, and satire protections.

Fair use parameters are outlined in 17 U.S.C. §107. Fair use is an affirmative defense which makes copyright infringement allowable in certain circumstances. Courts weigh the nature of the work, whether it is commercial or not for profit, how much of the copyrighted work is reproduced, and the market effects on the value of the copyrighted work. Infringing works that are academic or for news reporting purposes are usually eligible for fair use exceptions, for example. In regard to our humble Spider Man Desk internet meme, however, it is far more likely that the parody and satire defenses of fair use would be more applicable.

The Supreme Court has held that parody and satire qualify for fair use protections under §107. Parodies and satires typically bring new content or commentary to the table. At that point, their new “transformative” nature is taken into consideration and is weighed against the degree they infringe an original work. If a work is funny or offers some kind of socially redeeming commentary on the original work, chances are that it can qualify for fair use as well. It’s a good thing too because without this kind of legal defense framework, we would be denied the pleasure of virtually every example of referential comedy there is.

It would be fascinating to read a court opinion applying  fair use to internet memes and fan-made merchandise. It’s not a grey area of law, but it would be great to see some distinctions carved out for new uses. In the meantime, it’s good to know that parody and satire are still strong defenses that can shield fan artists from copyright litigation. Stan Lee certainly seems to enjoy the fan art based on his creations. He definitely knows the value of fans’ good will and the free advertising their fan art provides. If his legal team at Marvel did too, maybe fan artists would have less to worry about.

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Varietytwitch-tv-21-700x393 and The Wall Street Journal have reported that Google’s YouTube may be wrapping up a deal to acquire Twitch, the popular video game streaming service. Nothing is official yet, but the rumor mill is reporting that the price of the sale could be as high as one billion dollars.

Loading Law will be updating the story as more concrete details become available.

UPDATE!!! Google has reportedly followed through on the Twitch sale.  Details are still scanty. Check out what information is available now here.

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Last week Loading Law ran an article about the excavation of the now-again famous Atari Landfill in New Mexico. This week, Loading Law is following up on that story with its first ever interview, featuring none other than internet personality and diehard gamer James Rolfe.

James is probably best known to gamers for his hilarious video game reviews as the Angry Video Game Nerd, which can be found on his website Cinemassacre and on YouTube. James is currently in post-production of a film based on the Angry Video Game Nerd series, simply titled: Angry Video Game Nerd: The Movie. The film, which is slated to be released in the next year, just so happens to feature the Atari landfill, and James was generous enough to take some time out of his busy schedule to discuss the landfill with Loading Law.


LL: When did you first hear about the Atari landfill?

JR: The first time I heard about it, personally, was in late 2006. That year, we saw the rise of YouTube, and the Nerd got a growing fanbase. Requests for game reviews began pouring in. The biggest one was E.T. the “worst game of all time”. So I looked into it, and Mike Matei who has always been a big Atari fan, told me the history of the game, and that there’s a legend that the game was so bad, that millions of unsold copies were dumped in a landfill. At that time, there existed a lot more information about it on the internet, which has disappeared, only adding to the mystery. I use the word “mystery” lightly, because judging from all the old newspaper articles I read, it seemed like a fact that Atari dumped a bunch of games there, but generic games, like Pac-Man, Centipede, you name it, and of course some E.T.’s included because that game is as common as dirt. The location of the burial was confirmed. The only thing that wasn’t known is if the “millions” of E.T. carts were there. Or somewhere else.

LL: Why do you think people care about the landfill and why do you think it captured gamers’ imaginations?

JR: It’s like a treasure hunt. But the comedic aspect is that there’s no reason to find them. Everybody calls it the worst game. So why would you want to find it? That’s the funny part. It’s one of the most common games on the Atari 2600, you could find it anywhere. I wonder how many landfills actually have that game in them. So the fact that it’s a quest to find something awful, I think is the whole charm of the story. That’s why we care.

LL: What was it about the landfill and the E.T. game that made you want it as a part of your upcoming film?

JR: It’s the “worst” game, but the greatest game story ever told. If I were to do it as a regular game review, it wouldn’t be that interesting. Especially, because I don’t find the game to be that bad. Believe it or not, I think it’s one of the more sophisticated games on the Atari 2600 because it’s not just about getting a high score, you actually have to beat it. The whole story of the landfill deserved to be made into a feature film. So I invented my own fictional, adventure / science fiction take on it.

LL: What do you think the future has in store for the landfill? Will it be a gamer tourist attraction or will it be quickly forgotten?

JR: From what I’ve heard, the sentiment seems to be that they didn’t find “millions” of E.T. carts in there. What they found, only confirmed the mass Atari dumping with all kinds of games, E.T. being included. The millions of cartridges seems to be a separate incident, and one that’s not confirmed. Those carts could be anywhere. So that’s the “myth” part. So I think some people will still be searching. The story has definitely gotten a lot bigger over the years.

LL: You used to work under the name “Angry Nintendo Nerd” and have said previously you changed the name to avoid a possible trademark issue with Nintendo. Was there ever an actual legal dispute with Nintendo?

JR: There never was an actual legal dispute with Nintendo, no. The Nerd was just branching out into other video game consoles, so we made the name more generic, and not to use an established brand name.

LL:You write, produce, direct, act, and you do so much of the work for your projects yourself. What advice would you give to young filmmakers, gamemakers, artists, writers, and entrepreneurs in getting their own projects off the ground? What things do they need to know and do right off the bat?

JR: A tough question to answer. Could be in a book form. But the biggest advice I can think of, off the top of my head, is to just know that it’s hard work. Speaking mostly from the film side, but to all artists, is to be careful not to start a project that is too big too manage. Pick your own battles. You have to balance rational reason, with your passion. It’s easy to dream big, but the execution is always more difficult than you expect. Pursue the projects that are most important to you.

Check out more of what James had to say about the Atari Landfill here and follow his updates on the status of Angry Video Game Nerd: The Movie, here.

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