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June 26, 2014

Some thoughts as IGDA Board of Directors Chair

Filed under: Thoughts and Rants — Tom B @ 5:54 am

After almost 8 years on the IGDA Board of Directors, off and on, some call me a dedicated IGDA volunteer, others call me other things. As much as the IGDA often dazzles, baffles and even frustrates me, I must profess a deep abiding affection for the organization. Not because of the things it has accomplished. Or even its huge potential for good. It is because of its members. It is the community of developers and others individuals who help make the games we love that, for me, is what the IGDA is all about.

When I was elected to Chair of the IGDA Board last month I was awash with mixed feelings. Honored, scared, excited, and maybe even a little foolish. It certainly seemed like a fool’s errand, fraught with risk and having little or no tangible benefit. It is also limiting some of my good fun.

As a result of my unique place in the industry I have always been able to speak my mind, bluntly, or even crassly, at times. But that was OK because I was only speaking for myself and answerable to no one. For the next year or so, we’ll have none of that, as least not while I am Chair. Now, when I make any sort of public statement, even if I say it is only my personal opinion, it will be credited, for good or bad, to the IGDA and in some ways, as a result, everyone in our industry. So no colorful language (F-Bombs in particular), bombastic behavior or outrageous statements. That does not mean I am backing off….just putting tact before clarity for a while. Funny that the IGDA, which has always fed the kid in me, is making me act like a grown up. But no worries, I promise to remain a child at heart.

But, enough about me; what about the IGDA? Don’t ask me…I’m just the Board Chair. But seriously, the IGDA is really you, its members, as well as pretty much everyone else in our industry that we serve. So don’t expect me to be telling anyone out there what to do or suggesting their agenda. My only plan is to help the IGDA Board effectively facilitate the will of its members and to help meet members need and desires consistent with the IGDA’s Core Values. Core Values? Didn’t know we had any? We do and have had them for years. They were formulated in 2007 by a Board taskforce I served on.

These IGDA Core Values remain the solid foundation upon which this organization is built. And, they are worth repeating:

Community - We cultivate opportunities for our members and advance the profession when we communicate with our peers. We value inclusion and diversity as it makes us stronger, wiser and more relevant. We empower ourselves when we share information and opinions, collectivize resources and advocate on issues that concern us. We value the traditions and history of this community.
Professionalism – Game development is a bona fide profession dependent on the skills of talented individuals. As development professionals, we espouse conduct that is honorable and ethical, and beneficial to the profession, the industry and society at large.
Expression – Games are an expressive medium worthy of the same respect, and protections, as movies, literature and other forms of art and entertainment. We oppose any effort that would treat games differently from other forms of art and creative expression.
Innovation – We embrace and support “continual innovation” as being central to the medium of games, the game development profession and the IGDA.
Impact – Games and play are a major element in cultures around the world, with profound artistic, social, spiritual and technological impacts. They change the world in numerous ways such as entertaining, enhancing learning, inspiring creativity and innovation and forging new social connections.
Leadership – The IGDA provides leadership in addressing current and future issues affecting our profession. The IGDA’s role includes advocating publicly on issues that concern members, and on creating opportunities to empower its members. The IGDA provides leadership development opportunities for our members. As an individual member “Leadership means taking ownership, being a role model and a contributor to progress.
Fun – We are a community with a playful and fun culture, in an industry based on creating stimulating experiences for others. Games engage and entertain. Fun is in our DNA and we embrace that.

There’s a ton of goodness packed into those Core Values. (I kinda favor that last one.) Go ahead, read them again and see if you don’t agree.

The Members of the IGDA Board and I will be working as your volunteer leaders, along with our professional staff, to grow the IGDA and serve our individual members, to speak out on their behalf, especially when they cannot, and to assist them anyway we can and help them any way we can to further their careers. After all, we are a community. A community of individuals, not companies. A community of people helping people that make the games we all love.

This month the IGDA launched our Wednesday Webinars, and from that we will be building a library of content on issues relevant to developers. We are continuing to deliver real value too, through discounts and special deals for our members. And we’re just getting started.

Feel free to contact me at tom@igda.org with any questions, concerns or ideas you have or something you might like to see us try to make happen for you. We may not always come through, but I promise we will do what we can to achieve the goals of our mission: “To advance the careers and enhance the lives of game developers by connecting members with their peers, promoting professional development, and advocating on issues that affect the developer community.”

GL & HL!

Tom Buscaglia, Chair
IGDA Board of Directors

January 29, 2012

Don’t Tread on Spry Fox!

Filed under: Thoughts and Rants — Tom B @ 11:41 am

My law clerk, Andrew Berrier, sent me an email last week asking what one could do if a client came in with a complaint similar to Nimblebit’s outrage at the cloning of its Tiny Tower by Zynga. As General Counsel for indie developer Spry Fox, I had some very definite ideas of how to handle a situation like this. But until Spry Fox’s announcement of its law suit against 6waves/LOLapps for its blatant copyright infringement of the critically acclaimed Triple Town today, I couldn’t say anything about it. Now that the “bear is out of the cave,” I think it appropriate to go into the differences between Zynga’s clone and 6waves copy and why one is actionable and the other is not.

Absent a patent, while copyright law does not protect the idea, it does protect the protect the expression of that idea in a tangible form. It appears that Zynga only parroted numerous elements of the core gameplay of Tiny Tower. But, Zynga has been hit with law suits for infringement before and, it appears, took great care not to do any direct copying of the content and limited its clone to gameplay only. As reprehensible as I find this, it was probably legal.

With Yeti Town, 6waves/LOLapps copied not only the core gameplay but also the specific details of the expression of those ideas from Triple Town. The complaint filed Friday by Spry Fox shows some of the numerous examples of that copying:

• Descriptions of the each element of the gameplay in the tutorial;
• The identical placement on the screen and identical display of a pending combination of items in the game and the resulting item from that combination;
• The unique 6×6 grid layout with a storage “stash” located in the upper left corner of the grid;
• The layout and content of the game award screen when a game is finished;
• The “in game: store elements including the same order of available items, the identical number of “coins” and the identical limited number of each element available in the store, unique to Triple Town.

Though not mentioned in the complaint, other unique elements of the game, such as the manner in which potential combos pulse to show their combo elements and multiple scoring for 4 and 5 items combos were also copied.

As described in the indiemobleapps.com review of Yeti Town, one of the many industry articles decrying Yeti Town as a copy, “The game is essentially Spry Fox’s Facebook and Google+ hit Triple Town, but with a different theme, replacing bears with yetis and castles with skyscrapers.” Or Gamezebo.com that described Yeti Town as follows, “Unfortunately for Yeti Town, the only substantial difference between it and Facebook’s Triple Town is the platform it’s on. Otherwise it’s the exact same game, only this time with snow.” Yeti Town a copy of Triple Town? You bet it is!

Even more damning is the fact that Spry Fox and 6waves/LOLapps were in confidential discussions under a mutual NDA in July, months before the public release of Triple Town on Facebook and Google+. 6waves./LOLapps had pre-release access to the Triple Town closed beta of Triple Town and were well aware of Spry Fox’s intention to release the game on numerous platforms, including iOS. And, after its release, Spry Fox provided confidential information on the performance of the game on Facebook and Google+. 6waves/LOLapps continued to feign good faith negotiations with Spry Fox under the NDA at the same time it was having Yeti Town developed.

Obviously, they had been developing the copy for months prior to its release, all the while concealing the fact from Spry Fox. As noted in the Complaint, 6waves/LOLapps Dan Laughlin, Executive Director of Business Development, sent a message to David Edery at Spry Fox the day Yeti Town was released in the App store terminating negotiations, informing him of the launch of Yeti Town, apologizing to David for Yeti Town and expressing his personal regrets that it had been done.

In an interview on Gamasutra last week, 6waves/LOLapps had the unmitigated gall to claim that Yeti Town was independently developed by Escalation Studios, the developer it hired (and recently acquired) as a result “independent efforts.” This disingenuous defense of their illegal actions reflects an arrogant lack of respect for the people who actually contribute original content in games and their intellectual property rights. Unbelievable!

I cannot express how proud and honored I am to be associated with Spry Fox as David and Danc’s General Counsel. Spry Fox is a real deal indie studio dedicated to creating unique original games that contribute to the art of games and with the conviction to do the right thing and take action to protect their intellectual property. They are painfully aware that as true innovators they set themselves up to be cloned, which has already happened with many or their games. But copying a Spry Fox game will not be tolerated. So those no talent arrogant big boys who think its OK to make a living ripping off the creative geniuses in our industry take note - “Don’t Tread on Spry Fox!”

GL & HF!

Tom B

October 5, 2011

IGDA Foundation Charity Dinner to Feature John Romero and David Jaffe

Filed under: Thoughts and Rants — Tom B @ 3:22 pm

The Second Annual IGDA Foundation Charity Dinner will be on the evening of Thursday, October 27th at the Sheraton Gateway Hotel, LAX, in Los Angeles, in conjunction with this year’s IGDA Leadership Forum. This year John Romero will be continuing his “legend on legend” interviewing of seminal game designers with an interview of David Jaffe.

The dinner, preceded by a cocktail reception, will feature a live, on-stage discussion between John Romero and David Jaffe. David, the former Creative Director at Sony Computer Entertainment of America, is best known for his work on the Twisted Metal and God of War series and is presently the co-founder of independent game studio, Eat, Sleep Play. Romero, a prolific game developer himself, is best known for his design and coding work on such titles as DOOM, Quake and Wolfenstein 3D is now co-founder of Loot Drop, an independent social game studio.

The designer-to-designer discussion is in keeping with the mission of the Romero Archives, which is dedicated to preserving the work, processes and history of game design and game designers. Romero, a passionate advocate for the preservation of game design history, has already had design documentary discussions with Will Wright, Sid Meier, Bob Bates, Don Daglow, Noah Falstein and others with many more in progress.

The IGDA Foundation, a Charity by Developers for Developers, supports the mission of the IGDA through Scientific, Educational and Charitable works. Proceeds from the dinner will help support the Foundation’s projects including numerous game related scholarships, including the Eric Dybsand Memorial Scholarship for AI Development, the Accessibility SIG “Gamers with Disabilities” Project and the other events and programs of IGDA and its Special Interest Groups.

Join industry leaders and luminaries at this great event and support the IGDA Foundation and its charitable works.

Seating is limited for this event. Register now!

Cost is $200 per person (group pricing available).


October 27, 2011
7:00 ­ 10:30 p.m.

Sheraton Gateway Hotel, LAX
6101 W. Century Boulevard
Los Angeles, CA 90045

September 9, 2011

Hey Indie…Head’s UP, You have a Target on Your Back!

Filed under: Thoughts and Rants — Tom B @ 5:19 pm

While you have been buried deep in your design, code and art for your game, dark forces have been gathering - planning your enslavement. Notch’s success with Minecraft got a lot of attention. And not just from the gamer community but also from Farengi type business goons. You see, to them Minecraft is not a great game, it is a potent financial engine that, if harnessed, could be filling their coffers with gold pressed latinum.


First, let me say this, there are many solid fair dealing publishers and distributors out there who can contribute to the success of your game and, more importantly, to your studio’s ultimate success. But there are also a slew of bottom feeders who offer nothing but exploitation to any unwary developer looking to get his passion project in the world. I started seeing this crop up around the same time that word got out on Minecraft’s financial success. Like circling vultures with the smell of death in their nostrils, these “so called” publishing partners began to sign up Indies, launch Indie “friendly” portals and even run contests with the big award being getting the privilege to get screwed as first prize.

Ultimately, these folks offer little but an opportunity to get yourself and your game locked into a relationship that benefits them and does little or nothing for the developer. Often these so called publishing agreements lock the developer into ongoing obligations that not only take a disproportionate share of revenue from sales, they also allow the publisher to hire others to port your game to other platforms, with the costs ultimately deducted from the developer’s share of revenue before they get anything, if, in fact they get anything from the ports. And this assumes that if the game is a success, they actually pay you your share of the revenue.

The simple fact is that this is often not the case with some of the more aggressive exploiters. After all, you won’t have the money to hire a lawyer to go after them…and they know it because they hold your purse strings. So, take the time to ask around with others who have published through them (there’s a list of the games published right on the publisher’s web site), other indies and anyone else you can think of who may have an honest opinion before you get into any relationships like this.


Indies have been told that the real long term value in their game is in the ownership of the IP. But actually, it is not the mere ownership of the IP that creates long term value for you. It’s the control of the rights surrounding that ownership that facilitates the commercial exploitation of the IP. So, these good fellows will let you know right up front that they have no interest in owning your IP. Why should they when they can let you own it and then strip you of all the rights you might have to control or commercially exploit your IP going forward. They also commonly include rights to future games you may develop. So, not only is your game IP locked up, so is your studio. Heck, they even tie up ancillary revenue derived from the exploitation of merchandise like figurines, tee shirts and even future TV or film rights based on your game.


I recently counseled a developer who was considering a publishing deal for his nearly finished iOS/Android/PC game. The publisher was offering them a 40% rev share which they had negotiated up to 50%. This would be from net revenue after the deduction of all of the publisher’s costs, including marketing. I told them it did not seem like a deal worth considering and asked why they were considering taking. Their response was that they were unsure if they could adequately market their game and the publisher was making promises (though not willing to put them in writing and any meaningful way) that they knew how to market the game to make it a success. But he already had a deal to have it pre-loaded on some Android tablets, and after I took a look at the game I thought it would be acceptable on Steam as well. Hardly a bad shot at success.

I see very few reasons why any Indie would sign a digital distribution deal with a publisher as most, if not all, of these can be done directly with the digital or wireless portals. PC, iOS and Android games can easily be self-published. If you let a publisher do it for you, instead of getting the net pay out from the distributor, you end up with a share of that. In deals like this make sure any rev share the publisher is actually earned by them, not just given to them because they are cleverer than you are. Don’t do a deal like this lightly. Think long and hard, learn you options an gather as much information you can first.


So keep your options open. Often after months or years of having his or her head buried in their game it is not at all uncommon for a developer to have little or no objective ability to judge their game or to have a clue what to do once it’s done. Often they have not even been paying attention to recent industry trends or platform opportunities. Game designer extraordinaire, Daniel Cook, recently pointed many of these issues faced by Indies in his recent article Lessons Learned from the Indie Meatgrinder on Gamasutra which, if you have not already done so, you should give a hard read.

It’s great to make a cool game…but if you really want to do it for a living and not as a hobby, it’s a great idea to stick your head up once in a while to stay abreast of what’s going on in the marketplace. Otherwise, you’ll meet up with one of these bottom feeders. And if all you really want to do is make your game, fine. They will be more than happy to sell it for you.. Then both parties get what they want. ..you get to make your game and they get to make all the money.


So, what should you do? Well, to start with, don’t underestimate your bargaining position. Publishers make a living by selling games. Without what you provide they have nothing. Sure there is no shortage of eager developers out there willing to sign just about anything…but that’s no reason for you to do it. Like mom said, “If all your friends jumped off a cliff would you?” Besides, if they are interested in your title it probably means that they see value in it, and so should you.

Remember, the initial proposed deal a publisher sends is never a take it or leave it situation. It is the best deal for them. It is a starting point of the discussion. But should not be the deal you end up with. If they send you their best deal you should tear into it and make it the best deal for you and send it back. That’s how the process works. Take the same level of care you put into your game into getting the best deal you can. Retain your IP, but also retail control of it going forward. Don’t lock your game or your studio into a relationship that goes sour; have an out. For example, if the publisher wants the right to terminate the contract on 30 days notice, ask for the same right. Mutuality of rights and as limited a deal as possible is the way to go…at least try for it. Once you have done the best you can, decide if it is a deal worth taking. And, if you can’t do it yourself, get professional help. It may seem like a lot of money. But, in the end you will get much more benefit from the deal than whatever you have to pay for the help of an industry savvy professional.


Once you get an offer, don’t go all giddy. Sure it’s great to have a publisher think you game is worthwhile. But, you knew that, right? So, be patient in the process. The party willing to take time with the process of any negotiation almost always comes out on top. If a publisher tries to push you too fast, it’s a sure sign that they want to rush you into a bad deal. So, don’t let them rush you in the process, even if you’re in a hurry…slow it down. It will pay in the end. And remember, if you can’t say no, you can’t negotiate. The truth is that, ultimately, you may well be better of with no deal that with a bad deal. So, sometimes, it’s best to just say no.

I hope this helps some Indies to get that target off their back…and keep on making great games they love. Because that’s what it’s really about.

GL & HF!

Tom B

August 24, 2011

Why Gamers Sould Care About Developer Quality iof Life.

Filed under: Thoughts and Rants — Tom B @ 9:26 am

About a month ago I was contacted by a journalist asking to do an interview asking why gamers should care about the quality of life in game studios. QoL for developers is a issue I have given a great deal fo thought to over the years, but never from the gamers side of the equation. So, I had to give it some thought and then did my usual “foot in mouth” style rant. You can read the article, including my comments on this issue, HERE.

February 26, 2011

GDC Meeting Anyone?

Filed under: Thoughts and Rants — Tom B @ 10:38 am

If any game developers or other folks in the industry would like to meet up at GDC for some face time just email your cell number to me at thb [at] gameattorney [dot] com and I’ll call or text to set up a time. I’ll be there all week.

I hope to see you there!

GL & HF!

Tom B

February 21, 2011

“Say it ain’t so!”

Filed under: Thoughts and Rants — Tom B @ 1:47 pm

Last November I had the distinct pleasure of attending the Keynote presentation of Danny Bilson at the IGDA Leadership Forum. Danny is the Executive Vice President of Core Games at THQ. He discussed his journey into the industry from films and the transition of the Core Games division of THQ under his leadership. The reason I say “distinct pleasure” is because normally I spend sessions splitting my time between listening, checking my email and staring longingly at the door. But I was transfixed by Danny’s talk as he discussed his efforts at THQ to turn a company known for mediocrity into a top quality AAA game company.

How did Danny intend to accomplish this transition? By putting the decisions regarding game design and production exclusively into the hands of the creative teams. Huh, you mean the creative teams are not making these decisions? Well, no. For those unfamiliar with the decision making process used in many captive studios of top tier publishers, Marketing departments often have significant input into the design of games. Typically instituting changes to design or gameplay based on features in recent hit games. If a game has a feature and is a hit, then Marketing dictates the inclusion of a similar feature in a game in development at a competing publisher in the same genre. To most game developers, this is an incredibly dumb idea and frustrating model to live with. But to the suits who often make the final decisions for AAA titles - where risk aversion, not hit making, is the standard - spreadsheets with financial projections from the Marketing department are something they understand. High concepts or unique new gameplay ideas are not something the suits really can “grok.” The result for THQ was a parade of games known primarily for their mediocrity. The result for other publishing giants, like Midway, was even more severe.

Apparently, Danny’s solid history in the film industry and him repeatedly calling the Marketing department’s financial projections guesses (which they are…) finally convinced THQ management to put him in a position where he was in control of both production and marketing of their core game business. So, Danny put the creative teams in charge of making the games and the marketing teams in charge of selling those games. This clear understanding that ours is a creative industry from someone in a position to actually do something about it was awesome. When I heard him explain this philosophy and his approach, I started “crushing like a school girl” on Danny. Here was someone in a position of control saying what I had been waiting to hear for over ten years. I even followed him out of the session room and told him so. His plan of releasing 10 primarily creative driven games over the next 18 months will, hopefully, result in a string of critical and commercial hits for THQ. I certainly wish him nothing but success.

So, what’s with the whole “Black Sox Scandal” reference in the title to this post? Two things. First, a significant quality of life issue at one of THQ’s top core studios. On January 12 word leaked that THQ was putting the their Kaos studio, responsible for the upcoming game Homefront, on a 7 day a week 60 day “death march” until its release in mid March. I have been involved with the IGDA’s Quality of Life advocacy for years. There is a huge amount of evidence to support the proposition that this sort of crunch is detrimental to the health and well being of individual developers. It also contributes heavily to industry burn out, a scourge that continually drains our industry of experienced creative talent. In addition, there is substantial scientific evidence to support the proposition that this level of overtime is actually counterproductive because much of the extra time on the project is actually consumed correcting mistakes that occur during crunch due to fatigue and overwork. And my “hero” Danny was, apparently, the guy behind this decision or, at least, was openly defending the decision to drive this team to the finish line.

The second issue was talk of relocating the Kaos team to THQ’s recently announced Montreal Studio. In situations like that, team members are often given the Hobson’s choice of either relocating or losing their jobs. Of course, the economics of this move to Montreal are indeed significant with the huge incentives offered by the Quebec provincial government such as a 35% rebate on salary expenditures. However, the detrimental impact on team members of uprooting them and their families, or treating the individuals on the Kaos team as simply fungible “game factory” workers, creates a significant potential of destroying a solid team with years of history working together. The Kaos New York studio has bee in operation since 2006 from the remains of the Trauma Studio team, which had already been in New York for several years. So, quite probably, the upheaval on the members of the Kaos team would be significant. All too often publishers fail to comprehend the difference between the “golden egg” of a valuable franchise and the real value of the “goose,” the team that created it. Examples of this mistake are legion and we have all seen great franchises die as a result of this misapprehension by publishers.

My real issue here is what seems to be a tremendous disconnect between the professed “games are at their core a creative endeavor” espoused by Mr. Bilson at the Leadership Forum Keynote and this apparent lack of regard for the detrimental impact these decisions by THQ management would have on the individual developers who create THQ’s games. After all, the creative part of games is not some inchoate force or even derived from a few creative leads. It comes from the team of individual’s that create those games. One must wonder at the level of commitment at THQ to this philosophy of creativity ruling the process.

Of course, the death march may simply be a need to make Homefront meet the high quality standards that Danny feel he must meet in order to succeed and the inability to postpone the launch date due to financial necessities. Perhaps it will be a lesson learned and better planning and oversight of the development of games in the THQ core games division in the future may, in fact, be the result. This would be a great result for everyone working at THQ’s numerous core studios in the future; possibly a hard lesson well learned. Also, the economics involved on managing studios does often dictate decisions on studio locations. The THQ reloaction of Kaos to Montreal is only rumor at this point since the relocation decision has not yet been announced. If Homefront is a hit, it may not happen. But if it does, the impact on the Kaos will be potentially disastrous to that team and, ultimately, to the long term value of that IP.

One must wonder at these decisions and the apparent lack of regard for the well being of the individuals that are expected to make the hits essential to THQ’s desire to become a quality leader in our industry. After all, what is a creative endeavor without acknowledging the inherent value of the individuals that comprise the team that “creates?” If games are, as Danny says, a creative endeavor, then valuing the individuals that create them and protecting them from alienation and harm from corporate ignorance must be a top priority. It will be interesting to see how this all unfolds. But my concern remains. Danny, “Say it ain’t so!”

GL & HF!

Tom B

January 18, 2011

Another Great Game Idea!

Filed under: Thoughts and Rants — Tom B @ 12:11 pm

I get these sort of inquiries all the time, but have never bothered to do a blog post or article about them. But I think, since most of these people check out my articles or blog before the send me an email, this post might help them get a better understanding of the the true value of great ideas for games from those outside of the industry. The names have been changed to protect the innocent.

Dear Mr. Buscaglia:

I have discovered you via your papers and videos on the internet. I am a professional working in New York, and I enjoy video gaming from time to time.
Recently, I had what I believe to be an original idea which could lead to the development of the first true Massively Multi Player Online Strategy Game (real time play, not turn based).
If properly executed by a game developer, it could bring in significant money.

I am not a game developer. I am not a publisher. I have no relationships in the these circles. I just have this idea. I am looking to determine if the key elements of the concept, the Game, can be copyrighted and/or patented. If yes, I would require help to do that. Then I would welcome further help to shop the concept around to a developer/publisher. I work primarily as an executive for a mid-size not for profit company, but I have a small S corp that could function as the owner of the game assets.

The ultimate aim would be to secure a deal transferring ownership of the game to a developer in exchange for an upfront payment, plus percentage of revenues. Possibly an advisory role during the creation phase of the game.

I am writing you to determine whether you would be interested in working on this project. Ideally, I would like for you to review the concept and give me your opinion of its worth. If you think it has legs, then I would like to retain your services to do the work presented above. It would be helpful to see how much you think this would all cost.

I look forward to hearing from you.


Clueless in NY <-- not his real name!

Dear Clueless in NY

I do not mean to be harsh…but you really should just go back to your day job. Everyone who plays and loves games has great ideas…and, more importantly, everyone who makes games already has their own great ideas for games. It’s what they do for a living and they’re pretty good at it for the most part. So, why would they pay to take someone else’s game idea and make a game from it? It makes no sense.

Moreover, an MMO takes literally tens of millions of dollars to launch and ongoing support necessary to make it a success is also in the millions each month. Not the sort of investment any sane business person is going to make in a game imagined by someone with no industry experience or credits.

Sure, this is an industry based on intellectual capital. But, ideas are everywhere and everyone who loves games has a great idea for one (maybe more than one). The real trick is making games. If you can’t do that yourself, or afford to pay someone else to do it for you, you got nothin…

Finally, if were to review all the “great ideas” that folks send my way and then deliver my expert evaluation on them for free on the outside chance they I might gain a client from the work, I could not make a living. So, while I am happy to provide a free consult to game developers interested in retaining my services…which is more than most other lawyers will do, you got to have more than a “great idea for a game” to get my time or attention.

You said you were looking for some advice…and there you have it.

Tom B

September 17, 2010

IGDA/AIAS Amicus Brief

Filed under: Thoughts and Rants — Tom B @ 10:28 am

Today counsel for the International Game Developers Association and Academy of Interactive Arts filed their friend of the court, Amicus Brief, in the U.S Supreme Court in support of the Entertainment Merchants Association and the Entertainment Software Association in SCHWARZENEGGER vs EMA. This case addresses efforts by the State of California to limit the sales of violent games to minors, a position opposed by the IGDA and the AIAS. The case is scheduled for oral argument on November 2nd and an opinion should issue a month or so after then.

A copy of the Brief is available for your review HERE.


Tom B

September 11, 2010

Game Industry Response in Schwarzenegger v. EMA

Filed under: Thoughts and Rants — Tom B @ 12:23 pm

Having taken the time to read through the Respondent’s brief in the Schwarzenegger v. EMA case, I figured a post was in order in case there were some folks out there curious about WTF is going on. The Supreme Court is reviewing the lower court rulings that found the California law restricting the sale of violent video games to minors to be invalid because it was in a violation of the First Amendment guarantee of free speech. The Supreme Court does not have to hear cases and selects only a small number of cases for review each year. Usually these are cases where there have been differing results on the same issue among the US Circuit Appeals Courts. In this case, each and every time this issue has been reviewed by a Circuit court of appeals, statutes restricting the sale of violent video games to minors has been found to be invalid. The question of why the Court accepted this case has been the subject of discussion among industry lawyers.

Some think that the reason was that the Court wanted to put this issue to rest once and for all because once the Supreme Court rules on an issue, it is pretty much done. But then, 7 or 8 consistent appellate court ruling pretty much does the same thing. The concern is that the Supreme Court may have seen some merit in the effort to treat games different that movies and books and regulate their distribution in a manner that is not applied to other mediums. This is exactly what the California law attempted to accomplish. Considering the composition of the court and the stakes, it is no wonder that the industry took this very seriously. After all, any restriction on the sale of games or effort to treat game as “second class” citizens on the marketplace of ideas, entitled to less protection that other form of entertainment media, would have dire effects on our industry going forward.

The Respondents Brief submitted by counsel for the EMA and ESA Friday is pretty much a masterpiece. If you’re interested in reading it in it’s entirety you can find it HERE. In addition to the Brief , Respondents submitted six games into the record: Medal of Honor: Frontline, God of War, Tom Clancy’s Rainbow Six 3, Jade Empire, Resident Evil IV, and Full Spectrum Warrior. Respondents also submitted videotapes of more than two-and-a half hours of excerpted game play from the six games and have lodged a DVD with the Court containing the game play excerpts. The Petitioner (California) only discussed one game (Postal2) and submitted about 5 minutes of video of excerpts of gameplay. Apparently, the implied satire inherent in the over the top violence in Postal 2 was lost on “The Terminator.”

Here’s an outline of the Argument set out in the Respondents Brief from its Table of Contents that will give you an idea of the scope of the issues addressed:


I. Video Games, Including Those That Depict Violence, Are A Form Of Expression Fully Protected By The First Amendment.
- A. Video Games Are Fully Protected Expression.
- B. Depictions Of Violence Are Protected Expression.

II. The Court Should Reject The State’s Unprecedented Plea To Carve Out First Amendment Exceptions For “Offensively Violent” Video Games.

- A. The Government Does Not Have Unfettered Power To Ban Speech To Minors.
- B. California’s Claimed Right To Censor “Offensively Violent” Expression Directed At Minors Is Historically Baseless And Constitutionally Improper.
- C. There Is No Support For The Claim That Minors’ Access To Violent Video Games Is A Significant Societal Problem Justifying Exempting Them From Constitutional Protection.
- - 1. California Has Failed To Show That Parents Need Government Involvement In Monitoring The Video Games Their Children Play.
- - 2. California Has Also Failed To Show That Violent Video Games Are Harmful To Minors.
- - 3. Instead Of Identifying A True Harm To Minors, California Is Repeating The Same Failed Arguments That Have Been Used In The Past To Attack New Forms Of Expression.

- A. California Cannot Show That The Act Materially Advances A Compelling Interest.
- B. The Act Is Not Narrowly Tailored.
- C. The Act Is Not The Least-Restrictive Means Of Accomplishing California’s Goals.

- A. This Court Has Repeatedly Struck Down As Vague Statutes That Purport To Regulate Offensive Expression.
- B. The Act Is Inherently Vague.

That should give you a basic idea of the scope of the Argument…but it’s no substitute for reviewing the entire 78 page brief.

I have been involved in the drafting of the IGDA and AIAS Amicus, “friend of the Court,” brief which will be filed on Monday. I’ll post a link to that once it is filed.

Argument in this case is set for November 2, at 10 AM…after which we will all wait, with baited breath, until the opinion is issued, which can take from weeks to months to issue.

GL & HF!

Tom B

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