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Privacy Commissioner Releases Videogame Guidance

The Office of the Privacy Commissioner of Canada has released a Guidance Document for videogames, with particular relevance to online games which require users to provide personal information as a condition of accessing the game.  The OPC has made available both html and .pdf versions of the Guidance Document.

The Guidance Document consists of a series of questions and answers (primarily aimed at gamers) supplemented with information about video game developers’ obligations under Canadian privacy legislation.

Our pals at AccessPrivacy will be discussing the Guidance Document on their November 21, 2012 monthly call – details here.

Privacy Commissioner Releases Videogame Guidance

UK To Introduce Tax Credits for TV, Video Games and Animation

 

This week, the UK government announced that it plans to offer tax credits to high end television productions, video games and animation.

After a successful campaign by industry stakeholders, the government has acknowledged that it needs to do something to keep the UK competitive with other jurisdictions, particularly in the area of television production which has not been eligible for any incentives – unlike film.  The film tax credit is generally acknowledged as being a success, and the hope is that this can be replicated in the areas of TV, video gaming and animation.

In the television sector, there was concern expressed by industry players that the lack of an incentive in the UK would mean the loss of productions to neighboring countries that did offer something.

The UK government  is planning to enter into industry consultations to determine how these proposed incentives will work, and it could be 10-12 months before legislation appears.

This announcement is also good news for international partners who wish to co-produce television productions with the UK, particularly Canadians who have a long history co-producing with their British colleagues.  However, since the elimination of the sale-leaseback structures for television in 2002, the level of  Canada-UK television productions has dropped, with the UK slack being taken up by other countries such as Ireland.

This announcement does provide a glimmer of hope that the future of Canada-UK co-productions may be different than the recent past, and that would be a good thing.

 

 

 

UK To Introduce Tax Credits for TV, Video Games and Animation

You’re Getting Sued for What? An E&O Odyssey (Pt 5)

This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by E&O insurance, and which aims to demonstrate that what might seem to a producer to be paranoia on the part of their lawyer is, in fact, well-founded.  These posts will point to actual lawsuits which have been filed against film/TV producers for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

This installment in the series isn’t from the world of film and TV, but rather videogames: Eriq Gardner at Hollywood, Esq. reports that game publisher Electronic Arts is in court following threats from a manufacturer of helicopters asserting that including depictions of real-life ‘copters in videogames constitutes trade-mark infringement (Helicopters In Video Games Under Fire As Electronic Arts Heads to Court).

This sort of dispute raises pertinent issues which often arise when conducting an E&O review of a project – namely, what sorts of rights might the owner of an “object” claim against a producer who uses that object in their movie?  For example: is there a need to get clearance (i.e., obtain permission from the owner) for the use of a car in a motion picture?  (On a related point, and for a good summary of the issues see Dear Rich’s recent post Can We Use Cars in CD Cover Art or Movie?).  For the lawyer reviewing the matter on behalf of the producer, this often reduces to a “look and feel” analysis: Is the object (e.g., the car) being used in a prominent manner? Is there a danger that someone could construe the use of the object as constituting an endorsement of some sort? Is there a trade-marked logo which is visible? Is the object being disparaged in some fashion? Is there some kind of artistic design element on the object which might have separate copyright protection (to use an example which might be a bit out date: is the object a van with an airbrushed painting on the side)?

Digging a bit deeper into the analysis, however, there are both practical restrictions (if every object appearing on-screen needed clearance, movies would quickly become impossible to make – if every appliance in a kitchen required clearance, there wouldn’t be many scenes taking place in kitchens) and legal ones – it becomes difficult to articulate what “rights” a manufacturer might have in an “object”.  Section 64 of the Copyright Act (Canada) removes copyright protection for designs or artistic works which are applied to “useful articles” and then reproduced more than fifty times.  That would have the effect of preventing a car manufacturer from claiming copyright in their vehicle designs (assuming we’re talking about mass-produced vehicles, and not simply one-off “concept cars”).  But they might have some kind of relevant protection under the Industrial Design Act (Canada) which may warrant consideration.  Simply depicting a trade-marked logo is likely not to constitute “use” within the meaning of the Trade-marks Act (Canada), and so the only potentially plausible trade-mark claim would have to rest on some kind of disparagement or dilution basis.  The more difficult question to answer relates to copyright which might subsist in a visible logo – though, again, practically speaking in most circumstances such logos will be difficult to discern on-screen.  All that being said, many E&O insurance policies will simply require that prominently-depicted objects (such as vehicles) and depicted logos be blurred or that clearance be obtained – irrespective of the precise legal grounding of a potential claim.

You’re Getting Sued for What? An E&O Odyssey (Pt 5)

Maxime Gagne on The Legal Side of Gaming’s Digital Revolution

Colleague Maxime Gagné attended the 2011 Montreal International Games Summit, met journalist Peter Nowak, and the result was an interview with Maxime which produced this in-depth discussion about videogames, EULAs and copyright issues.  A sample:

The obvious question is, how enforceable are end user license agreements (EULA) given that virtually no one reads them?

I agree with you, but there are ways to make them enforceable. One of the ways that I personally favour are the summary statements of the rights and obligations of players. Twitter, even though it’s not a game, has an interesting example of this. If you go on the Twitter website, even though they have a full-length license agreement, they have a summary that tells users in clear language what they’re allowed to do and what they’re not allowed to do. Often times, even though that’s being followed by a very long license agreement, if the basic principles are made clear to the end user right off the bat, then you have a much greater chance of having an enforceable EULA. I always say to my clients, if it’s important to you, make it clear and summarize it.

Also, it looks simply but often what you’ll see is that the EULA will pop up on the screen and you already have the “I agree” button even though there are 77 pages that you don’t have to read to click it. If at the very least you can demonstrate that the player had to go through the entire license before clicking “I agree,” in most circumstances it will be enforceable. That being said, there are rules in respect to unconscionable contracts that are unfair to the user. Within the frame of mind that most EULA are consumer contracts, courts will tend to favour consumers over developers in the interpretation of those EULAs.

Maxime Gagne on The Legal Side of Gaming’s Digital Revolution

Right of Publicity Roundup

A slew of interesting materials have recently been posted relating to developments in the United States law relating to the “right of publicity” (for Canadians, the closest analogue would be the rights protected by the tort known as “appropriation of personality” – for some Canadian-specific academic treatment of the topic, see the resources listed in this earlier Signal post):

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Right of Publicity Roundup