Legal risks and implications of hyper-realistic videogames

Although digital consumption was already rising before the Covid-19 outbreak, the pandemic has undoubtedly accelerated this trend. In this context, the gaming industry is one of the wealthiest of all entertainment industries, with revenues projected to reach $159.3 billion in 2020 by the Newzoo 2020 Global Games Market Report and experts don’t see growth taking a hit in 2021.

As gamers amongst you may know, the technological advances has largely eliminated the gap between real and digital humans and between real and digital places. In this respect, a good example is Travis Scott’s epic virtual concert in Fortnite, where the giant digitalized figure of the rapper attracted a record concurrent player count of 12.3 million, leading to roughly $20 million income for Scott, according to Forbes.

Not only this phenomenon – the reproduction of persons and places – has social and psychological implications (ever seen some Black Mirror’s episodes?), but it also poses significant legal issues, which we will explore in the following paragraphs.

1. Reproduction of famous people’s likeness

As mentioned, the reproduction of famous people’s likeness in videogames is a widespread practice which can be extremely lucrative both for the VIP and for the game, as in the case of Trevis Scott. It was traditionally done either to make the videogame more realistic (for example, by creating characters resembling an historical figure of the time in which the game is set) or to insert some elements of glamour (for example, by creating characters resembling famous actors or singers). Now, it is also a way to bypass the limitations imposed by the pandemic and “transfer” online events that used to occur in physical places, such as concerts.

However, reaching these scopes is not a smooth path for game producers, as permission of the person shall be sought. If the organization of a live event necessarily implies the collaboration of the person and is regulated by a set of commercial agreements, in other cases producers may have more difficulties (e.g. the person does not agree or he/she is dead).
As some may remember, a very high-profile case involved Selena Gomez suing the developers of a fashion mobile game to the tune of $10 million USD for using her image without her permission. This news dates back to April 2020 and – although we cannot be sure of how it will be decided in the US – at the moment the game is not available on the App Store anymore.

What would happen for a case like this in Italy? First of all, it must be pointed out that the existence and content of personality rights are governed by the person’s national law, pursuant to art. 24 of the Law n. 218/1995 which regulates the Italian private international law. However, if the person at issue was Italian, the Civil Code states that the portrait of a person cannot be exhibited, reproduced or placed on the market without the person’s consent and – after the person’s death and in perpetuity – his spouse/children/descendants’ consent.

Although there are some exceptions to such a rule (for example, consent is not required when the reproduction is justified by the person’s notoriety, police needs, scientific, educational or cultural purposes, or when the reproduction is related to events occurred in public), they are interpreted in a very narrow sense by Italian case-law, especially when the use of the person’s likeness is made for profit, like in videogames.

2. Reproduction of buildings and artworks of the Italian Cultural Heritage

Another key aspect to be considered is the location: while some videogames are set in a fictional reality or in a football field, others are set in real cities.

To give users the idea that they are located in a specific city (and there are entire Wikipedia pages dedicated to lists of videogames set in London/Paris/Florence), game designers perfectly reproduce physical venues, which sometimes include buildings and artworks relevant in terms of arts and culture.

If videogames are distributed globally, the reproduction of such items is regulated in very different ways across countries. For example, in the United States there is a fairly broad ability to take pictures and videos of cityscapes and reproduce them, while in Italy is not quite the same. Italy has a very unique legislation which sets important limits to the so called freedom of panorama. Thus, when a game developer wishes to create a game where famous buildings/artworks placed in Italy are shown, it should pay extra care and investigate whether the specific building/artwork at issue belongs to the Italian Cultural Heritage.

In fact, unlike many other countries, the Italian Code on Cultural Heritage and Landscape (Legislative Decree No. 42/2004 – Codice dei beni culturali e del paesaggio) requires that the reproduction of works of art or public monuments that belong to Italian Cultural Heritage is authorized by the competent authority, which can either be the State or a local public entity in charge of the monument. Once (and if) the authorization is granted, a fee – which varies depending on the kind of use to be made – must be paid to it. Given that these authorities tend to be very vigilant, it is key to know when authorization is needed.

Actually, if a building/artwork belongs to the Italian Cultural Heritage and is reproduced with no modification whatsoever, authorization is absolutely mandatory. By contrast, when the item has been creatively modified and reworked by the game designer, there is room to evaluate, on a case-by-case basis, whether authorization can be bypassed. To reach a positive conclusion, the modifications usually shall have a substantial impact on the final representation of the building/artwork in the videogame. This analysis can vary based on a number of different factors: the level of similarity between the original building/artwork and the digital one, the way in which the building/artwork is represented in the videogame, its role in the story, the level of detail that the user can perceive, and so on.

Also, it is key to pay extra care not to mislead the public in suggesting that the videogame is somehow sponsored or associated with the monument or the relevant authority, as this could give rise to claims of false endorsement and unfair competition.

3. Reproduction of copyrighted architectural works

Games set in real cities are tricky also for another reason: even when a building does not belong to the Italian Cultural Heritage (as – for example – a recently built skyscraper), its reproduction might still entail some legal risks, as it could be protected with copyright.

Indeed, architectural works and projects fall within the works protected under the Italian Copyright Law (Law 22 April 1941 n. 633), provided that they are original and creative. Thus, the author of an architectural work is entitled to the exclusive right to economically exploit said work in any way and by any means, including the right of reproduction and communication to the public, from the moment of its creation and for a duration of 70 years of the author’s death. As a consequence, game developers shall investigate whether the cityscapes reproduced include copyrighted architectural works. If this is the case, the permission of the owner/architect shall be sought (unless the reproduction is aimed at criticism, discussion, teaching or scientific research, which is not quite the case given that videogames are a profitable activity).

However, it must be noted that this is not 100% true for any reproduction. When the architectural works at issue are in the background of the videogame, when they are blurred or when they can be barely recognized, the risk of infringement may be lowered, although not excluded.

4. Reproduction of branded products

Last but not least, videogames have become key to create a connection with Gen Z and millennials, and luxury and streetwear brands are increasingly taking this opportunity to target potential customers. This trend was significantly boosted by the pandemic: fashion and beauty companies became more and more aware of the huge potential of the gaming world, as gamers and e-sports fans are consumers willing to spend on both in-game and real life products.

Last in chronological order, on January 4 The North Face x Gucci collection was launched in Pokémon GO. Indeed, for a limited time, avatar items like t-shirts, hats, and backpacks from The North Face x Gucci Collection will be available at over 100 PokéStops (i.e. pop-up stores) around the world. Less recently, in 2019 Louis Vuitton entered into a partnership with League of Legends, whereby not only in-game prestige skins for characters had been created, but also a real capsule collection. Other collaborations involved Balenciaga, Burberry, Gucci, GCDS, Puma, Valentino, Marc Jacobs and the list is getting longer and longer.

In this respect, game producers shall be careful as each collaboration needs to be well-assessed. Indeed, it is key to check whether and which intellectual property rights are involved in the reproduction: the product may bear a trademark (e.g. monograms), its shape may be registered as a design, it may even be protected with copyright.

In these cases, the reproduction of the product is obviously not free, the right holder’s consent shall be sought and the collaboration – including the use and exploitation of the IP right – shall be regulated though a well-designed partnership agreement. However, even if the specific product does not bear any trademark or logo nor it is protected as a design, it is still key to carefully evaluate whether it is advisable to reproduce it freely, given that such use could give rise to claims of false endorsement and unfair competition.

In short, game producers shall take into consideration a number of factors in developing a game, be careful in choosing the setting of the story, its characters and the way they are dressed, and they shall remember to act in advance to seek all the permissions needed.

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