Tags: card game, card games, china, copyright, copyright protection, videogame
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Discussion: The plaintiff in DaVinci Editrice v. ZiKo Games (S.D. Tex. 2016) published Bang!, a role-playing card game with Wild-West themes that became a world-wide success. Bang! players are assigned one of four roles – Sheriff, Deputy, Outlaw or Renegade – each with its own “winning condition” (e.g., the Sheriff wins by outliving the Outlaws and Renegades). Each player also gets assigned a card evoking a familiar Wild-West character (e.g., Calamity Janet) with its own unique ability and 1-to-5 “life points.” Players also draw “weapon cards” (enabling them to reduce competitors’ life points) and “mount cards” (enabling them to gain distance from competitors, making them harder to attack).
One defendant, Yoka Games, based in China, produced the card game Legends of the Three Kingdoms, distributed in the U.S. by the other defendant, ZiKo Games, LLC. Despite the different setting (Ancient China) and accompanying different artwork, the four roles in LOTK – Monarch, Minister, Rebel and Turncoat – had the same abilities, functions, goals and winning conditions as the comparable roles in Bang!; players were subject to nearly identical rules of play; players drew Chinese hero cards with similar abilities and life points as the Bang! character cards; and similar action cards were used.
Notwithstanding procedural wrangling over the lay vs. expert status of a witness and arguments about the significance of various similarities, this was an easy summary judgment for the Court: “Bang!’s characters, roles, and interactions are not substantially similar to those in LOTK. The aspects of the roles, characters, and interactions that are similar are not expressive, and aspects that are expressive are not substantially similar. ZiKo and Yoka are entitled to summary judgment of noninfringement.”
An Interlude for Copyright Aficionados: The Court’s reasoning begins with the black letter principle that copyright protects expression, not ideas. Therefore, “Copyright does not protect game rules because they fall within the section 102(b) exceptions for an ‘idea, procedure, process, system, method of operation’.”
On the other hand, the Court acknowledges that “courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.” The present dispute focuses on the roles and characters and their interactions, which are very similar in both games. Thus, the key issue is: Are the characters’ similar interactions “unprotectable game play,” as the defendants argue, or “protectable expressive content,” as the plaintiffs argue?
The Court begins by distinguishing two types of games: (1) those like books and movies, which have a progression of events (plot) and developed characters (who interact following a script) “that make the game expressive” (e.g., The Legend of Zelda), and (2) those like NBA games, which consist of “loosely prescribed progression” (“teams trade offensive possessions over four quarters”) between players with assigned roles (guard, forward, center) but without predetermined interactions, which are therefore neither expressive nor copyrightable.
Bang!, says the Court, “has no specific plot or detailed information about the characters that tells us what these characters will do or how they will interact with other characters.” Rather, like basketball, Bang! has created a number of roles, defined their alignment with and opposition to other roles, and created rules for their interaction, but has not created a scripted or detailed performance for each game. Thus, Bang! is more basketball than novel, and its character interactions are not protected by copyright.
The Court also addresses character copyright and explains why LOTK wasn’t infringing, despite the near-identity of the 4 main roles (excluding their look and labels). The answer lies in the “distinctiveness” requirement: To earn copyright protection, characters cannot be stock, generic or indistinct, but must embody enough original expression to attain copyrightability. However, “Bang! has no specific plot or detailed information about the characters… LOTK’s alignment of roles tracks Bang!’s, which in turn was drawn from the general alignment of stock characters in ‘spaghetti Westerns.’”
The Court also considers and rejects the plaintiff’s argument that, even if the characters themselves are not copyrighted, their special abilities may be: “The Bang! characters’ abilities are largely drawn from stock-character abilities. Like a punch or kick in a karate game, Bang! characters’ abilities are common in games in which the object is to kill the other players.” Moreover: “Even if the Bang! characters’ abilities were not stock, they are still not expressive because they are essentially rules of game play.”
A similar conclusion applies to the plaintiff’s key claim, namely, that the Bang! characters’ interactions via the game rules are themselves subject to copyright. But that argument fails here for the same reason it failed at the higher level of character copyright: “Bang! characters do not have delineated personalities, temperaments, back stories, or other features typical of characters in movies and books that contribute to making those characters’ interactions protected.”
Conclusion: The Court was mindful that game rules are generally not copyrightable, a principle that anchored its holding in favor of the defendants. However, the Court did recognize at least three game elements that could potentially give rise to copyrights:
- expressive graphics or other original visual elements;
- a relatively fixed progression of themes, dialog, mood, setting and character; or
- well-delineated characters themselves.
Still, if a character (whether in a novel, film or videogame) is not sufficiently distinct to be copyrightable – which may be because it is a “stock” character defined only by generic traits, or because it is a positional player guided only by rules of play – then its interactions with other characters will not be copyrightable, unless these interactions are at least partly fixed or scripted.
In short, despite displaying some of the artistry of its namesake, DaVinci’s characters (and their traits and interactions) were too stock and generic to be copyrightable … and thus its suit failed to produce more bucks for its Bang!.
For more information on this topic, please contact Howard Zaharoff.
Tags: academia, Becker College, EDA, entrepreneur, entrepreneurs, entrepreneurship, federal grant, us department of commerce, us economic development administration
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MBBP client the Massachusetts Digital Games Institute (“MassDiGI”) at Becker College received a five-year grant in the amount of $583,000 from the U.S. Economic Development Administration, part of the U.S. Department of Commerce. The grant will support MassDiGI’s promotion of entrepreneurship, economic development, and academic cooperation across the state’s video and digital games ecosystem.
MassDiGI was established in 2011 and is based at Becker College. Congratulations to our client on this impressive contribution.
MBBP Client HappyGiant Receives High Praise for New Video Game, Including from Rolling Stone 09/29/2016Posted by Morse, Barnes-Brown Pendleton in Client News, Corporate, Games & Interactive Entertainment.
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Firm client HappyGiant, LLC is garnering a lot of attention for its new augmented reality and virtual reality game, HoloGrid: Monster Battles, including in an article in Rolling Stone. For the new game, Michael Levine, president of HappyGiant, teamed up with Phil Tippett, who has designed countless movie monsters, including the ones featured in the famous 3-D chess scenes featured in the Star Wars franchise.
The virtual reality and augmented reality features of HoloGrid: Monster Battles create the effect of real life monster game pieces. Levine and Tippett leveraged a successful Kickstarter campaign this year in order to create the game, described by VentureBeat as a “tactical-battle collectible card game”. Tippett created the monster characters while HappyGiant focused on the creation of the Tactical Battle CCG augmented reality game. The combination of the two designs resulted in a hybrid board/digital gaming experience.
MBBP is thrilled to have HappyGiant as a client and is excited to continue to work with them on their future endeavors.
You can find out more about HoloGrid: Monster Battles and HappyGiant in the following articles:
Tags: baseball, big papi, david ortiz, entrepreneur, entrepreneurs, fanzcall, red sox, redsox, startup
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Fanzcall, an interactive live sports game app, announced that Boston Red Sox’s David Ortiz is now a shareholder in the Waltham-based startup company. Ortiz has an equity stake in the company, and will serve as an Ambassador. Fanzcall allows users to guess the outcome of at-bats during live games. It was founded by Anton Khinchuk and has already raised approximately $1.6 million through investors.
Regarding his involvement with Fanzcall, Ortiz remarked “I’m excited that the Fanzcall app allows baseball fans to become a part of the game they love… I love this opportunity to work with Fanzcall to extend my own love of the game, even after I retire.” The app is available for free in the App Store and in Google Play.
MBBP is thrilled to continue its work with client Fanzcall, and looks forward to witnessing its continued success!
3/22/16 – On Your Mark. Get Set. GROW! 03/07/2016Posted by Morse, Barnes-Brown Pendleton in Events, Games & Interactive Entertainment.
Tags: drivn, event, fitivity, sports, Tech, technology
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Join us in Waltham, MA on Tuesday, March 22 for a look at The Business Arc of a Sports Technology Startup.
MBBP has teamed up with Boston Seed Capital to co-host a lively discussion on the unique experience of emerging companies in Boston’s sports technology industry. Representatives from local sports tech startups Drivn and Fitivity will share a candid look at their company’s journey.
Topics will include:
- Fundraising in Boston
- Getting to Scale
- Scale vs. Monetization
Presentations will be followed by an interactive Q&A session.
Seating is limited. Register today!
Tags: entertainment, flame in the flood, game, mac, molasses flood, pc, video game, xbox
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MBBP client, Boston-based The Molasses Flood has released their first game for PC, Mac and Xbox One. From the Art Director of BioShock and a team of veterans of the BioShock, Halo, Guitar Hero and Rock Band series comes The Flame in the Flood.
Gamers navigate a journey through the backwaters of a forgotten post-societal America, evading predators along the way. Characters travel ‘by foot and by raft down a procedurally-generated river.’ Challenges include scrounging for resources, crafting tools and most importantly, staying ahead of the coming rains. This is no ‘Oregon Trail.’ (Game Industry News agrees. Check out their review.)
Learn more about BioShock’s Forrest Dowling’s first foray into indie games as Founder of The Molasses Flood in this engadget interview.
Congrats, Molasses Flood!
Tags: crowdfunding, FTC, games, kickstarter
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According to the FTC’s complaint, project creator Erik Chevalier raised more than $122,000 from 1,246 backers to purportedly “develop, produce, and distribute” a board game entitled The Doom That Came to Atlantic City.
Chevalier launched his Doom campaign in May 2012 with a funding goal of $35,000. Only 30 days later, Chevalier nearly quadrupled his goal –“But, after 14 months, Chevalier announced that he was cancelling the project and refunding his backers’ money.”
Chevalier did not provide refunds to his backers. According to the FTC’s complaint, “Chevalier spent most of the money on unrelated personal expenses such as rent, moving himself to Oregon, personal equipment, and licenses for a different project.”
Under the settlement order, Chevalier is required to honor stated refund policies and prohibited from making misrepresentations about any future crowdfunding campaign, including:
(a) the purposes for which funds raised from consumers will be used;
(b) that by making a contribution, consumers will receive a specific good, service, or other reward deliverable;
(c) the performance, efficacy, nature, or central characteristics of such good, service, or other reward deliverable; or
(d) the qualifications or expertise of any person associated with the crowdfunding campaign.
Although the settlement order also imposes a $111,793.71 judgment against Chevalier, project backers are unlikely to see any return on their contribution – at least for the foreseeable future – as the fine has been suspended “due to Chevalier’s inability to pay.”
The FTC’s action against Chevalier highlights the shortcomings of self-regulation. Kickstarter, and others like it, provide project backers with limited protection, generally dictated by the site’s terms of service.
“Many consumers enjoy the opportunity to take part in the development of a product or service through crowdfunding, and they generally know there’s some uncertainty involved in helping start something new,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “But consumers should be able to trust their money will actually be spent on the project they funded.”
In its press release, the FTC provides:
This case is part of the FTC’s ongoing work to protect consumers taking advantage of new and emerging financial technology, also known as FinTech. As technological advances expand the ways consumers can store, share, and spend money, the FTC is working to keep consumers protected while encouraging innovation for consumers’ benefit.
For Kickstarter campaigners, an important lesson is to be learned – keep your promises when crowdfunding. Use funds collected for a specific purpose only for that purpose. Provide refunds when necessary and rewards when promised. Or be prepared to suffer the potential legal consequences.
Tags: entertainment, gaming, MIT Enterprise Forum, MITEF
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Today billions of people around the world play games, and not just for fun. Many people are now playing games to stimulate their minds, improve their health, and change their behavior, as companies beyond those traditionally thought of as game companies incorporate game mechanics and business models into their offerings. On April 13, 2015 The MIT Enterprise Forum of Cambridge will host a half-day conference, The Big Game Theory: Gaming Beyond Gamers. This conference will focus on topics of interest to companies seeking to adopt game elements, including Universal Best Practices, Gaming in Healthcare, Driving Engagement and much more!
MBBP partner Mike Cavaretta is the founder, former chair, and current steering committee member of the MIT Enterprise Forum of Cambridge’s Games and Interactive Entertainment Community Circle, which played a key role in organizing the conference.
The agenda and registration can be found here.
Tags: console developer, Demiurge Studios, Marvel Puzzle Quest, mobile apps, mobile developer, SEGA
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MBBP Client Demiurge Studios, an independent game developer out of Cambridge, Massachusetts, has been acquired by SEGA Networks, a multinational video game developer, publisher, and hardware development company. Founded in 2002, Demiurge Studios made the transition into mobile gaming in 2008 and found success with Marvel® Puzzle Quest™, a top 100 grossing app on the App Store and top 50 grossing apps on Google Play. Previously, they worked with world-class developers like BioWare™ and Irrational Games™ on AAA console and PC games, contributing to titles such as Bioshock, Borderlands, and Mass Effect. Demiurge Studios will continue to make games under the Demiurge Studios name.
Morse, Barnes-Brown & Pendleton serves as counsel to Demiurge Studios, and advised it in connection with the structuring, negotiation and documentation of this transaction.
To learn more, read the full press release.
Tags: innovation, Mandalay Sports Media, NBA, NFL, NHL, NSL, OYO sportstoys
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MBBP client OYO Sports is getting noticed by investors and making strides towards innovative toys for kids. OYO, based in Acton, makes plastic “minifigure” toys that resemble star athletes, similar to the popular Lego toys. The local toy start-up company has raised $14 million in funding in the last year and has recently acquired a new investor. OYO’s newest investor is Mandalay Sports Media, a company chaired by Hollywood executive Peter Guber, who is also an owner of the Los Angeles Dodgers and the NBA’s Golden State Warriors. Local OYO investors include Atlas Venture and Boston Seed.
Way to go, OYO!
MBBP Publishes Articles on Data Privacy 11/27/2013Posted by Morse, Barnes-Brown Pendleton in Games & Interactive Entertainment, Privacy and Data Security, Publishing & Media.
Tags: COPPA, data privacy, FTC, mobile privacy
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MBBP has published two articles on Data Privacy, both written by licensing and intellectual property attorney Faith Kasparian. The first article, FTC’s Recommended Best Practices for Mobile Privacy Disclosures, discusses the Federal Trade Commission‘s report on privacy recommendations for mobile platforms, app developers, advertising networks (other third parties), as well as app developer trade associations including academics, usability experts, and privacy researchers. For the full article, please click here.
Faith’s second article, FTC Finds Privacy Practices Lacking in Mobile Apps for Kids, covers a report released by the FTC which raises concerns with the current lack of privacy practices and disclosures for apps directed toward children. The report also announced the launch of nonpublic investigations to determine compliance with the Children’s Online Privacy Protection Act and the Federal Trade Commission Act. For the full article, please click here.
For more information on either of these topics, please feel free to contact Faith.
Giant Otter Co-Founders Interviewed by NECN 10/02/2013Posted by Morse, Barnes-Brown Pendleton in Client News, Games & Interactive Entertainment.
Tags: giant otter technologies, MassChallenge, School Life, start-up
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On September 6, New England Cable News (NECN) interviewed MBBP client Giant Otter Technologies, a start-up that builds simulations to teach social and communication skills using crowdsourced artificial intelligence. Giant Otter is a finalist for MassChallenge, a four month accelerator program, and is in the running to receive the $100,000 grand prize. NECN interviewed Giant Otter co-founders Geoff Marietta and Dr. Jeff Orkin on MassChallenge and their lead product, School Life.
Click the image below to watch the full interview:
Tags: giant otter technologies, MassChallenge, online games
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Giant Otter Technologies creates data-driven improvisational role-playing virtual simulations that can help change behaviors and improve relationships. In short, their online games aim to teach people social skills and better human interactions.
Their first project is developing a three-dimensional, online anti-bullying game in which middle and high school students will play the role of the victim or bystander and ultimately learn to empathize. Future projects will tackle other challenging situations such as teaching the military cultural interaction skills, allowing sales people to practice with virtual customers, teaching doctors to improve their communication with patients and training managers to lead their staffs.
Keep up the good work, Giant Otter!
Developing an app? Make sure you own it! 02/20/2013Posted by Morse, Barnes-Brown Pendleton in Games & Interactive Entertainment, Intellectual Property, Licensing & Strategic Alliances.
Tags: app development, ownership rights, phone apps
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On February 11th, Adobe published an article “Developing an app? Make sure you own it!” written by MBBP Licensing, Technology and IP Attorney Michael Cavaretta. Mike advises readers on precautions app developers should take in order to ensure their ownership rights are protected.
To read the full article, please visit the Adobe Developer Connection.
For more information on developing an app, feel free to contact Mike.