Recently two New York courts addressed intellectual property issues in conflict with video game realism and reached the same conclusion in two different contexts—copyright (tattoos on virtual basketball players) and trademark (trademark and trade dress issues around virtual AMC Humvees). Stephen M. Kramarsky explores the cases in this edition of his Intellectual Property column.
One unexpected consequences of the current pandemic has been—of all things—an increased focus on video games. The industry is thriving as people working from home turn to games to relax or suddenly take notice of what their children have been doing in their downtime. Many adults may be seeing for the first time what modern video games actually look like—and how far game environments have come.
One of the most notable trends in video game hardware over the past several years has been the increase in graphics processing power available at relatively low cost. With that technological advance has come a substantial increase in detail and realism in certain kinds of games, where a “cinematic” experience has been the proverbial Holy Grail—notably some sports games, simulators, and military-style shooters. But when such realism is the goal, designers may face legal challenges along with the technical ones. One challenge in depicting something distinctive from the real world is that somebody probably already owns it. The better the digital copy, the more “real” the virtual world will feel, but also the more likely it is to infringe some existing right or rights.
For example, a realistic NBA basketball game has to include LeBron James. But, under a host of different laws including NY Civ. Rights L. §50, Mr. James has the right to control the use of his image, and his team and the NBA own the logos on his jersey and even things you might not think of, like the graphics on the floor of the court. To address those issues, video game companies enter detailed licensing agreements with the real-world entities their games simulate. Thus, Mr. James (like every NBA player) has given the NBA the right to license his likeness to third-parties, and the NBA has granted that license to various game-makers. So he can be in the game.
But how real can he be? Mr. James has distinctive tattoos. They are creative works; someone made them; someone owns the copyright in them. Can they be in the game? Recently two New York courts addressed intellectual property issues in conflict with video game realism and reached the same conclusion in two different contexts—copyright (tattoos on virtual basketball players) and trademark (trademark and trade dress issues around virtual AMC Humvees). The cases are worth a brief examination.
This article first appeared in the New York Law Journal on May 18, 2020. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Mark Brodt, a registered patent agent employed with the firm, provided substantial assistance with the preparation of this article.