First Amendment Protection for Videogames: The Unspoken Implications

Since the 1980s, videogame producers unsuccessfully litigated to obtain First Amendment protection for their releases. This battle has been fought in the context of (i) attempted government regulation

Since the 1980s, videogame producers unsuccessfully litigated to obtain First Amendment protection for their releases. This battle has been fought in the context of (i) attempted government regulation of facilities having or selling video games and (ii) those seeking to impose tort liability or to have violent content regulated like pornography.

For more than 20 years, videogames were not afforded First Amendment protection. However, it is time to explore the implications of this protection on the heels of the first anniversary of the first case recognizing that videogames were protected by the First Amendment.

The First Amendment permits authors of written works to use names or trademarks to lend an air of verisimilitude, and permits the writing of unauthorized biographies without violating the subjects' rights of commercial exploitation. Would the First Amendment protect the video producers who used an image of a well-recognized building like Trump Tower and its signage as a backdrop for a crime scene manipulated by the player? Is it any different than a fiction author describing a character as "a real estate mogul in the style of Donald Trump"?

The author of these words conveyed specific meaning to the reader. The depth of the imagery has changed, markedly, since the airing of Trump's hit TV show "The Apprentice." The glistening office and residential towers bearing his name, the resort communities and golf courses that bear his crest, the private 727 and glittery casinos all come to mind. The imagery is now more defined.

Does the resounding success of "The Apprentice" deprive the fiction author from invoking those images? The First Amendment protects the author's use, provided the use is incidental or relevant to the story.

Until 2001, videogame manufacturers did not receive that benefit. Producers received their first glimmer of hope when the Seventh Circuit Court of Appeals shunned years of legal precedent -- established for less-sophisticated video arcade games -- in a ruling on behalf of the American Amusement Machine Assn. and others. The Seventh Circuit ruled that videogames like "The House of the Dead" and "Ultimate Mortal Kombat 3" were protected "stories" because they utilize full-motion video, detailed animation and surround sound that bring the story lines and characters to life.

However, this victory was seemingly short lived. A District Court in Missouri was asked to follow the lead of the Seventh Circuit and declined, ruling that even sophisticated computer and videogames have "no conveyance of ideas, expressions or anything that could possibly amount to free speech."

But the Eighth Circuit's decision in June 2003, in favor of the Interactive Digital Software Assn. and others, overturned the Missouri court, changing the landscape back to the reality and recognition that videogame technology has progressed into animatronic adventure, akin to movies and other literary works that are afforded First Amendment protection.

Thus, until the Supreme Court of the United States rules on an appeal filed by St. Louis County from the Eighth Circuit's decision, or until other Circuit Courts that previously did not confer First Amendment protection for relatively unsophisticated videogames (like Ms. Pac-Man) speak on the issue of sophisticated games, it appears that the leading word on the topic has been pronounced: The advanced technological reality of videogames now engenders expressive speech.

The protection colors copyright, fair-use and trademark confusion issues, as well as rights of privacy/publicity. This will be the new legal battleground. Can the producers of, for example, "True Crimes" have their next sequel take place in the streets of New York near Trump Tower, emblazoned with the Trump name, and have the player steal a valet-attended automobile?

The permissibility will depend on the degree of use in the story. If the appearance of a well-recognized "name" building in a game scene taking place in New York is either incidental or relevant to the story, it would not be infringing. However, the greater the tie-in to a public figure and the perception that there is commercial exploitation, the more likely it is that the First Amendment will not provide immunity. Clearly, it would not be permissible to advertise and market the game using the name or image, giving rise to the public perception that it is a sponsored product.

While the battle as to whether videogames are entitled to First Amendment protection is far from over, the technological reality should continue to prevail that this medium is no less worthy of protection than movies and books.

This new-found protection is sure to spawn a spate of new litigation, as videogame producers, who push the parameters of grotesque and grisly to new heights, will seek to make their games more realistic by interposing recognizable images of people and things into their two-dimensional worlds so that they are more reflective of the 3-D world. Stay tuned for the next sequel.

Scharf is a partner and member of the executive committee in the New York law firm of Morrison Cohen. He practices in the area of commercial litigation, with an emphasis on real estate, entertainment and securities litigation. His firm represents videogame manufacturers and producers, and he represents celebrities, business entrepreneurs and entertainers in litigation and business counseling matters.