IamA Video Game Attorney (it’s really still a thing, I swear) who has helped thousands of game studios and professional esports players navigate everything from their contracts to their intellectual property. If it exists in digital entertainment,...

Worst clause in a player's contract you ever seen?

The reason I helped over 200 players this past year without charging them a dollar is because so many contracts say things like "You are signing here for $500 a month for six years." It's insane to me these get signed, but they do. I try to prevent that.

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But to clarify, the biggest problem I see with players is that they sign things the same way high school bands used to sign with record labels back in the day. They're so excited to make it, they throw everything away to do so. They sign away their likeness, their everything, all for a small paycheck (and sometimes no check!). I would never ever ever sign an agreement like this without an attorney, and I'm an attorney! Have someone who knows what they're looking at review this for you. Not your mom's real estate attorney friend, but someone who knows what Twitch is. There are lots of digital entertainment attorneys out there, and most of us offer free consultations. Take a breath after your offer, call a professional, and start your career the right way. We've never lost a deal by negotiating or red lining it for safety, and you shouldn't be afraid of that.

sorry I'm not following...does that mean the player is paying you that amount or the player getting paid that amount?

Getting paid that. But I think it's more to do with the length of the contract?

Yes, a six year term for 500 a month is not something anyone should sign ever. Really hard to see so many contracts out there like that.

What are some traps you think indie groups/companies should avoid when starting up? I imagine publishing deals are some of the most common ones?

The biggest trap is thinking they're on their own. Many attorneys, not just myself, offer free consultations and will walk you through the steps on going from a hobbyist to a true developer. The steps I recommend for *nearly* every startup (whether kid in his dorm room or mid level studio looking to shore themselves up legally) are as follows:

Form a company (usually an LLC, but I'd want to chat with you about it) - This protects you from liability if you get sued. It separates your business assets from your personal assets. Without it, I can come after your house.

Contractor Agreement - This is the one that causes the most issues if not done right! If you pay a contractor for art, code, whatever, and you don't have a formal agreement *that contractor maintains ownership*. Doesn't matter if you paid, doesn't matter how much you paid, etc. Without an agreement, they maintain ownership and can revoke the license you paid for at any point. Very dangerous. I've seen major releases lost over this. Don't be one.

Trademark your game name - Trademarks protect your name and logo. It's what you spend all that time, energy, and money on marketing. So when people see your name, they know "Ah, that's the one I heard about!" Trademark it so others cant say you copied them, and so you can stop copies!

Terms of Service and Privacy Policy - An LLC protects you if you're sued, a good ToS protects you from being sued in the first place. They are so so so important. And privacy policies are legally necessary in just about every jurisdiction. Don't sleep on these!

How would one create a formal agreement for a contract? Also can I DM you about starting an LLC and trademarking a game name?

DMs get flooded, so please email if you need help! But NDAs, copyrights, and some other items are super easy to figure out yourselves. For a contractor agreement, the line between employee and contractor can blur easy and get you in trouble. I'd chat with a lawyer for sure!

Have you helped anybody involved in Overwatch League?

Yup! We represent over half the players in the league actually.

Non-video game lawyer here - wouldn't representing over half of the players in the league inevitably lead you into a conflict?

Nope! We take that very seriously, and we've let go two great players in the past (and found them great new agents) in the super rare situations it even gets close to that. The reality is there are not many other esport attorneys or agents, and I'd rather help these guys when I can than leave them to their own devices. But we also draw the lines clearly, cleared things with the bar, and no players at my agency are forced to use our legal services. They're just discounted if they'd like. We get them the tryouts and negotiate their deals, but it is up to the player to truly earn their spot.

Are you a fan of the Ace Attorney video game series? Since Phoenix Wright is technically a video game attorney too ..

I'm a video game attorney, he's a video game, attorney. I think? Someone with grammar help me out. No, but of course. I'm overdue cosplaying him at PAX, ha. But before I partnered with Allison Rothman and formed my new firm, I actually had Pheonix Wright quoted on my website.

Thoughts on Belgium banning loot boxes in games?

I feel the same about loot boxes as I do gambling. Loot boxes should be REGULATED, not outright banned. We should know the percentages of what's in them, not allow them targeted at children, etc. But one thing I firmly believe is that these are gambling.

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A bigger answer is that we have proven over time that legislators and government bodies have no idea what they're doing when it comes to video games. We have private entities like the ESRB that have been protecting us for a long time. They put on the age rating on games so we wouldn't see bad laws instead. That's why it's extra heartbreaking to see them come out and say loot boxes are not gambling, effectively ignoring the problem. I have seen firsthand how loot boxes are targeted at specific people, odds changed to be unfair, etc. It is a real problem, and I hate to feel the games industry becoming like the tobacco industry, keeping our heads in the sand and saying "Nothing to see here!" We're begging for industry shattering legislation.

What do you think of MCNs (Multi Channel Networks) and the recent Defy Media scandal?

Unfortunately can't discuss due to involvement. But generally I don't like people who rip people off :)

I started an online eSports Tournament Organizer. We host PUBG/Blackout tournaments with cash prizes. Are there any legal troubles/issues I should be worried about?

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Edit: Thank you to everyone who answered. I am going to consultant with my state BAR for a referral. Thank you all and thank you /u/VideoGameAttorney for the responses!

Tons! I would take this very seriously because running afoul of gambling law can be jail time. While unlikely here, it should be taken seriously and you should speak with an attorney.

What do you consider the absolute worst thing you had to deal with so far?

The pizza in Los Angeles.

Vito’s Pizza is the closest I’ve found to nyc pizza.

I will try it but I'm blaming you if I don't like it.

With the recent (and not so recent) issues with YouTube copyright claims, it seems more so that larger companies are just claiming things wildly without any recourse. Is there anything that channels and content creators can do to reduce this issue or are we at critical mass where it is going to take a full revamp from YouTube to see any change?

It will take a reexamination of the laws actually, more than what YouTube can do themselves. YouTube is kind of stuck between a rock and a hard place, as the law that says they are not liable for what YOU upload also says they only are not because they can't possibly police their site. The more they are hands on with policing themselves, the less the law potentially protects them. What small creators should do though is lawyer up if they think they are in the right. Unfortunately, most yell fair use but their videos are far from it.

What happened between you and h3 (and FUPA)? I heard they fired you for some reason?

Thanks for doing this AMA.

Was waiting for this one! Haha. I helped them out entirely pro bono (free) for a long time, and my partner at the time, Michael Lee, and I helped them with the original litigation (not free). However we were in New York and only two people. They moved to LA halfway through, and they changed to a giant law firm in their new city that charged insanely higher prices than us, and the donations they received were needed to go to that. They showed an invoice from the new firm for something like 60k in one month, and people wrongfully assumed it was us. I've never charged any single client that much even over years. But they won the case, and it's a huge win for us all. I have nothing but good will towards them both and hope they're doing well :)

Have you ever delved into the Dota 2 legal world? There's plenty of legal issues regarding visas, unpaid salaries or prize money, I bet you'd make a killing. If you haven't, can you mention a notable experience you've had counseling people in esports?

I started in Dota! I also have 4k hours played in Dota. Unfortunately the reality in that scene is that the players care less about the contracts than the org, and Valve doesn't exactly assist in the insanity. It's not hopeless, but it's also something that would take 100 unpaid attorneys to fix. League, Overwatch, Fortnite, etc...they all see growth in players rights and stability. Dota trends the other way.

MMR?

I'm from reddit so 7k

Looking for summer law interns? :)

Yup :) But don't tweet me, DM me, smoke signal me. This is a fun profession, but we hire professionals. Email a resume and cover letter. Can't tell you how many people send memes on twitter and hope it turns into a job. That only worked once or twice, and your meme game ain't strong enough. Yet...we will train you.

Have you ever dealt with stolen game property such as gaming accounts?

Sure have, and unfortunately super fact specific so hard to give a general answer on it.

What are you playing right now?

I'm unfortunately busy so my game library is a bit behind everyone's. That said, I just finished Spider-Man and it was far and away the most "fun" I've had with a game in years. They nailed it.

“fun”

I dont know why the quotes. Haven't coffee'd yet. It's the most fun, haha.

Can you clear up the myth (or non-myth?) of "Companies have to sue to protect their IPs" or "Companies have to make sure their trademarks don't become common language," etc.? I have of course heard the opposing, "No, that is not true. Otherwise, they could bankrupt themselves trying to sue everyone who infringes on their IP," but it occurs to me that I've never heard a straight answer from a lawyer on this.

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Thanks.

The reality is, "yes, this is the way the law works." But also, "It's very hard to have someone actually lose a trademark over this." Half of America refers to any soda as a coke, but coke still owns their trademark. Xerox on the other hand, does not. So it's an easy thing for company's PR teams to use as an excuse when they hit you with a hammer, but then there are other (hilarious) companies that are legitimately afraid they'll lose it (See Velcro - https://www.youtube.com/watch?v=rRi8LptvFZY)

How frustrating is it having to add that disclaimer anytime you want to talk to the public about law? What would or could actually happen if you omitted each of the sentences in that disclaimer?

It's a genius law made by the smartest people I've ever met.

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Keep smiling...

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Okay, the bar committee is gone...Listen, I understand the need to police attorneys and their advertising techniques, as it's easy for an ambulance chaser to take advantage of a distraught victim. That said, the laws are bit archaic, and certainly are silly here. But I'm not trying to get any strikes against me from the powers up high, so here we are.

"Can I make a fan game and release it for free?"

I know the answer, but it's always asked...

NO! But thanks for bringing it up. Free does not equal fair use. Don't listen to anyone who says otherwise.

The trick is to upload it to the internet before you get C&D'd, and don't talk about it before you're ready to upload it.

This is not legal advice.

EDIT: Don't forget to upload any copyright-infringing material via TOR so it becomes much more difficult for a company to subpoena your IP.

This might be the worst advice I've ever heard, haha

1) With respect to game development. At what stage in the process are you usually brought in? Front end/early concept or more backend to review finished materials?

2) Do you think current state laws w/r/t to sports agents currently apply to esports and if not, do you believe they will expand in this area?

1. Usually brought in after there is a fire, but it's way smarter and cheaper to bring us in BEFORE.
2. I sure do! That's why my agency is fully licensed as a sports agency, as well as our partner ICM getting a sports license as well.

Has being video game attorney ruined your love of video games?

EDIT: I guess I am assuming you loved video games in the first place. Sorry!

Not at all! Still a huge part of my life, and was growing up as well.

Hello!!

What’s the actual deal with fair use? Is there grey areas comedians can play around with, or is it pretty black and white?

The copyright office has a fairly good breakdown: https://www.copyright.gov/fair-use/more-info.html

But the reality is fair use is a very grey area, and not something that most indies can "afford." Until a judge or a jury says something is fair use, nothing is. It's a defense, not a right. As such, getting through litigation will often times cost you six figures. So if you are going to use fair use as a justification for your project, make sure it's VERY clearly fair use. The easiest thing to do is create your own content though. Most are in this industry because they're more talented and creative than I am. So go create!

How do you go about becoming a video game attorney?

There's not necessarily anything that is "video game law," and it's more other areas of law through the lens of video games. Find your interest, whether intellectual property, contracts, privacy, etc., and just really work your butt off to be an expert in it. Additionally, NETWORK! Knowing people is far more important than your resume. Go to GDC, PAX, etc., and try to get a coffee or a drink with people in fields you want to work with.

What can small devs realistically do against juggernauts like Bethesda claiming ownership of single words used in titles, like "prey" and "scrolls"?

Plenty of little guys own one word trademarks too. The reality is trademarks are here to protect US, the consumers. It lets us know when I see a brand, it's actually a product from that brand. Trademarks are not a broken system, just a lot of broken understanding of what they do and how they protect things. That said, when we see abuses (Candy Crush anyone?), it's up to attorneys and the community to rally together and fight it. See the REACT trademark fiasco from years ago.

What's the most good you've done by getting involved in a case?

I like to think we've helped a lot of people, but unfortunately usually can't speak to specific cases I've worked on. That said, we've done hundreds and hundreds hours of pro bono work for various people in the industry.

A lot of games we buy or play have massive terms and conditions covering more than just protecting their software, do games companies have much power in enforcing these terms when the consumer has no power of negotiation when "agreeing" to them?

For example, banning players for in-game conduct (such as swearing) is this something justifiable ? should they not be required disable your chat and provide you access? especially where people have paid for content in game?

Can a games company be held accountable for ones investment in a game (hours spent playing, purchased goods) if you were banned, especially where it is now a potential career path for people?

Terms of service are absolutely binding, in almost all cases, so be careful! And yes, most times when you feel a game company can't possibly get away with what they did, they can.

How do you get paid from esports players? Are you trying to help them now, for free, to sign them as their primary attorney once they get bigger?

I have a separate talent agency that represents them the same way CAA represents traditional athletes. We also will review their contracts at our firm hourly and normally like most other firms. What we do differently is we also help players who can't afford it for free, when the situation warrants it. That said, if they're making seven figures we aren't working for free ;) I've done that, and the players disappeared and it wasn't worth the weeks of my time it took to do it. I have to keep the lights on too, haha.

Say two people want to form a partnership in the form of revenue sharing. What would be the first step to insure either party doesn’t get screwed over? I heard simple contracts don’t suffice. Am I wrong in that assumption?

Contracts save friendships and create businesses. I would make sure you guys negotiate the terms you want (that you know about) and then speak with an attorney on what to put in your partnership agreement or operating agreement (if you form a company, which you almost always should) that will protect against any future headaches. Those agreements usually sit in a drawer until there's a problem, so make sure they go over every problem you can think of.

At what point of game development should a independent game developer contact a lawyer?

Right up front! Chatting with most lawyers to plan out your business is free.

Have you ever met Jack Thompson?

I try not to spend time around lunatics.

I'm looking to make a game with a guy who's in another country. What is the best way to handle the business side of things? Are we able to create a business across country boundaries? what if one of us is the business and the other contracts to the business? how would be the best way to structure things so it's an even 50-50 split between us? How should taxes be handled? I am in Canada and he is in South Africa. (But I assume these kinds of problems can exist for any two developed countries)

Hey hey! It's a longer question and can't answer specifics to your situation, BUT: Generally, any consenting adults can agree to contractual language in any jurisdiction. It's super common for someone in another state or country to work where you are, and you just agree to a choice of law that works for you both. As for company formations, those are handled similarly, but I would involve both a lawyer and an attorney in the decision making process.

but I would involve both a lawyer and an attorney in the decision making process.

There is a difference?

Oh man, thanks for catching that! Meant a lawyer and an accountant ****

Who would win in a fight between you and UltraDavid?

in a fighting game it wouldn't be close. In a Taco Bell eating fight I would dominate him.

What do you consider your greatest success (that you can legally disclose of course) over the duration of your career?

Getting the internet to start to understand free does not equal fair use :)

When is Robot Congress coming back?

We really are going to be doing them more consistently this year! Starting soon :)

Favorite client you've represented?

I love all my clients equally. Except the ones I like less.