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Protection of Minors Doesn’t Trample Free Speech in Online Games

In 2005, California enacted a ban on the sale or rental of violent video games (defined as a game that depicts killing, maiming, dismembering or sexually assaulting an image of a human being) to minors. The stimulus for the law was the stated belief that violent videogames are likely to make minors become more aggressive and violent. The penalty for retailers who violate the ban? As much as $1,000 per violation.

As you might imagine, the legal challenge started almost immediately – from publishers, distributors and sellers; and today, in a 7–2 vote, the U.S. Supreme Court upheld a ruling by an appeals court that held the California law unconstitutional. I believe (although I didn’t go back and check yet) that California now becomes the seventh state to have such a law struck down. Justice Scalia, in summarizing the decision, is reported to have said, “Our cases hold that minors are entitled to a significant degree of First Amendment protection. Government has no free-floating power to restrict the ideas to which they may be exposed"; and in his written opinion for the majority noted, "Even where the protection of children is the object, the constitutional limits on governmental action apply."

We will try to bring you more details once we analyze the 18-page opinion handed down today, but if you have questions, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

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Videogame Advertising to Hit the $1 Billion Mark

According to a report in Media Week, advertising spending for advertising in videogames will reach about $1 billion by 2012. Advertising in video games can take a number of forms: in-game advertising, which is preformatted ads that appear within the game itself; advergames, which are games constructed around a particular brand or product in order to highlight and promote that product or brand; context-sensitive or dynamic advertising, which is similar to in-game advertising, but rather than static advertisements, can be contextually modified in a number of ways depending on when, where and how the in-game scene is viewed. Most of that growth is projected in the casual, online, web game world catering to a broader audience than hard core console gamers. The logic is that people are more willing to accept advertising in return for free game playing on the web; and absent a dynamic Internet connection with more user acceptance than is evidenced to date, console gaming provides fewer opportunities for placing context sensitive or behavioral advertising.

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Video Gaming–First Amendment Prevails

A California appellate court has held (Kirby v. Sega of America) that makers of video games have a First Amendment right to base game characters on real celebrities, as long as the characters have been transformed. The celebrity in this case, Lady Miss Kier, former lead singer for Deee-Lite, claimed a character (named “Ulala”) in the video game Space Channel 5, infringed her rights. Not so—at least not in this case. So what does “transformed” mean? For that, you have to call us (or read the case for yourself).

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Disappointed in Super Bowl Bid, Giants Seek to Score on the Legal Field

This past November, the New York Giants and the NFL filed suit against Clear Channel Communications alleging breach of contract, trademark infringement, unfair competition and fraud. Apparently, a number of Clear Channel websites advertised a promotion that would enable listeners to win tickets to Giants’ football games. Both the Giants and the NFL allege that the stations were not authorized to use tickets as prizes in connection with any such promotion, and since the printed text on the back of the tickets specifically indicates tickets may not be used for advertising, promotion or other commercial purposes without the written consent of the NFL and the Giants, they sued. The complaint alleges that these promotions were unauthorized and (because apparently this was not the first time promotions like this were attempted) were a “willful and bad-faith” attempt to trade on the Giants’ and NFL’s famous trademarks and their goodwill. That, the complaint says, is likely to confuse consumers into believing that these promotions were sponsored or endorsed—authorized. The NFL and the Giants are seeking to enjoin the websites (and presumably any other medium) from using these tickets for promotional purposes or using their trademarks at all.

We will let you know as the two-minute warning approaches.