newtech.law - legal aspects of new technologies

In our series we have addressed the issue of protecting a video game against cloning in the context of lack of legal protection for an idea for a game. In this article, we will take a broader look at this problem.

Nerves, feverish analysis, and refinement of details are typical crunch elements before a video game is released on the market. Crunch, a period of intense work, usually shortly before the launch of a game, involves long working days, nights and weekends in front of a computer, sometimes on tasks the worker has never performed before. Can the employer order the employee to work under such conditions, and must the employee comply?

Geo-blocking limits the ability to buy products and services based on the customer’s nationality or residence. The conditions for access to goods and services and payment terms vary according to geographical criteria. In principle, such practices are prohibited in the EU. Does this ban also apply to video games?

Interest in the game development industry is not diminishing. The upward trend has been consistent for several years, and 2021 is sure to bring a further increase. Forecasts indicate that in 2023 the value of the game market will exceed USD 200 billion.

The Warsaw Stock Exchange has strengthened its position as the world leader in the number of listed companies from the game development industry, even ahead of the stock exchanges in Japan and South Korea. The game market is becoming an increasingly promising area for investors, which can be seen in both the number and value of transactions. The segments of mobile games, distribution under a subscription model, and cloud gaming are gaining. At the same time, with so many titles available on the market, game marketing becomes more difficult and skilful community-building around a specific title becomes vital.

Recognising the importance of the game industry, last year we published the report “Law for game development,” which deals with specific legal issues in the production and publication of games. However, new legal challenges are emerging that must be faced by all stakeholders in the broader game industry. Therefore, we are starting another series of publications in which we will touch upon, among other topics, intellectual property law, labour law, personal data, and less-obvious aspects of criminal or regulatory law. We will also devote a lot of space to commercial issues that can be useful for game developers and investors alike.

Sometimes, a character in a game evokes an association with a real person. This similarity may be intentional or accidental. To ensure they are on solid legal ground, game developers should obtain the consent of the actual person to use his or her image. Failure to do so can result in severe consequences. In this text, we will discuss the rules for using likenesses of real, living people.

What is a likeness?

A person’s likeness refers to someone’s image, recorded for example in a drawing, painting or photograph, as well as the way a person is perceived and portrayed. Contrary to popular belief, likeness does not refer only to an image of a person’s face. It encompasses a range of personal characteristics, including natural features (e.g. eye shape), elements of characterisation or clothing (e.g. glasses, hairstyle, makeup, accessories), and even voice, deportment, behaviour, gestures or characteristic sayings. Thus, the likeness of a person is constructed of his or her recognisable features, by which we distinguish this person from others. Do you recognise the people pictured below? Just in case, the answer is given in the footnote¹.

Sharing, exchanging or jointly collecting data may be valuable for the businesses involved and for the development of a given industry sector, technological innovation, and, as a result, consumers. Indeed, data are of fundamental importance for the development of the digital economy, either alone or as a basis for functioning of artificial intelligence. Hence, the competitiveness of companies on the market depends on access to relevant data.

Issues related to access to data have been addressed, among other places, in the “Competition policy for the digital era” adopted by the European Commission. This policy notes that discussions between undertakings on data sharing cannot be conducted in isolation from the nature and type of data, how it is used, and the specifics of the market in question.

Businesses holding certain data may find it risky or not economically justifiable to share it at all. They may fear the loss of competitive advantage, wrongful appropriation of the data, or use of the data in breach of contract. There may also be concerns about possibly violating competition law. The latter concern is also recognised in a Commission document, the “European data strategy.” It highlights the need to update the Commission guidelines on horizontal cooperation, so that the Commission provides additional guidance on the compliance of data-sharing and -merging arrangements with EU competition law.