Ross Hersemann is a graduate of the John Marshall Law School in Chicago. He is the founder of Loading Law – an organization with the purpose of providing analysis of developing legal issues with video games, is the President of the Video Game Art Gallery, and does freelance intellectual property work. Hersemann and I were talking about how Supreme Court Justice Sonia Sotomayor has yet to respond to any of my love letters, when we started talking about eSports and the law. To discuss this topic further Hersemann allowed me to interview him for SciPulse.
Nicholas Yanes: First, as the Founder of Loading Law what are some of the cases that people dealing with videogames should know?
Ross Hersemann: Currently, cases that deal with the right of publicity and celebrity likenesses are all the rage. In particular, gamers should keep an eye on Lindsay Lohan’s current lawsuit in New York against the makers of Grand Theft Auto V. She has claimed, among other things, that characters in that game are based on her and that she should be compensated for the alleged use of her likeness. The outcome of her case could impact how celebrities, or characters based on celebrities, are featured in games. The financial impacts, and free speech implications could be very interesting.
Yanes: On this note, do you have any favorite cases dealing with videogames?
Hersemann: There are so many. Some I love because they have had a huge impact on the industry and laid the groundwork for the laws we have now. Others I enjoy because it’s entertaining for me to see how out of touch some judges are when it comes to new technology. I’d have to say though, Brown v. Entertainment Merchants Association is probably my favorite. That is the case that FINALLY recognized that video games as a medium are entitled to free speech protections. It only took until 2011 for the law to realize that!
Yanes: In the past few years, eSports have rapidly grown in the United States and worldwide. Focusing on eSports in the U.S., what are your immediate thoughts on its future?
Hersemann: It’s a very interesting time for eSports. It’s worth noting that organized game tournaments and leagues have been around for decades. In the past they often struggled due to poor organization, finances, marketing, and a myriad of other difficulties. In recent years though, platforms like YouTube and Twitch have helped eSports reach more people and get a stronger foothold. The industry is still ironing out the kinks, but I think there has never been a better time for eSports to sweep the nation.
Yanes: When I think about eSports in general, two legal issues come to mind. One, given that many states have specific laws regulating sporting events and that online gaming ignores all these state laws, how do you think eSports associations will navigate these regulations?
Hersemann: It’s anyone’s guess. This is a relatively new industry and there is no model to follow when it comes to compliance. The internet is a virtual world that doesn’t fit easily into traditional legal notions of jurisdiction. For the time being, I think that eSports associations will have to attempt to comply with existing regulations in every jurisdiction their games touch. Of course, that’s much easier said than done. I think a more long term solution would be the introduction of new legislation at the Federal level outlining regulations for online gaming in all 50 states. That way we will have a set of regulations specifically tailored for video games, as opposing to shoehorning eSports into existing legal frameworks.
Yanes: Two, fans will probably follow eSports athletes in a manner similar to how people watch Let’s Play videos. Given that the legality of Let’s Play videos have yet to be established, how do you think eSports organizations will act to avoid any copyright infringement issues?
Hersemann: Given the nature of the industry, I expect that most organizations will avoid copyright issues by licensing the use of the games they feature. It is also likely that game makers will officially endorse tournaments organized by outside associations. Since tournaments are great publicity for game makers, I think there are plenty of incentives for them to be cooperative in licensing the use of their intellectual property. When all else fails, throw some money at it!
PBS Game/Show did a great episode on this top, “Are Let’s Play Videos Illegal?”
Yanes: Most professional sports tend to have a college level. And as eSports get bigger I do foresee the establishment of a collegiate eSports division. Would a college eSports system have to operate under the NCAA or could it develop its own system?
Hersemann: That would be very interesting! An official collegiate eSports league would have the benefits of the additional financial support and organization that other college sports enjoy. It would also further legitimize eSports for the general public that haven’t jumped on the bandwagon yet. On the other hand, it would take a major push from the NCAA or colleges to make it happen, so it would be extremely difficult to get off the ground. I don’t think such a league would be necessary for cable television coverage of eSports though. As eSports continue to gain more steam, eventually television networks are going to cover them more and more.
ESPN has even covered college level eSports event
Yanes: College sports are deeply regulated by Title IX. Given that eSports are gender neutral in that no gender has a biological advantage over the other in gaming, how could you imagine colleges and high schools using eSports in regards to Title IX?
Hersemann: I think most teams would be co-ed.
Yanes: Online gaming is still frequently subject to laws regulating gambling. What would eSports have to do to free themselves of these gambling laws?
Hersemann: Video games, rightly or wrongly, often fall under laws intended to regulate gambling. This can prove problematic for video games that do not contain any traditional aspects of gambling. A major factor in this misclassification is ambiguous terminology. The term “gaming” has long been used to describe gambling. It is now applied more generally to apply to video games, board games, and gambling alike. Simply calling gambling “gambling” could be a good start to correcting this problem, but it is unlikely to be remedied any time soon. The line between gambling and video games can often be very blurry.
Though I would argue video games are for the most part skill-based games, many feature chance-based elements that are reminiscent of gambling and thus subject to gambling legislation. The fact that eSports heavily features cash prizes and payouts further complicates the issue. It is my hope that as new generations of lawyers and lawmakers that are more familiar with video games climb the ranks, they will be able to better distinguish video games from gambling. At that point, hopefully many of these issues will iron themselves out.
Yanes: Every lawyer I know wants to present a case before the Supreme Court. What legal issue surrounding eSports do you think could be taken before the Supreme Court?
Hersemann: I would love the Supreme Court take a case involving online harassment. It is a sad reality that open chat channels used by most gaming platforms and eSports associations are hotbeds for harassment. A case clarifying where the line falls between protected free speech and impermissible hate speech in these virtual worlds could send a message that games are for everyone, and that game spaces should be safe spaces. I would take any case that could make that happen in a heartbeat.
Yanes: Finally, on a practical level, what are the legal issues you think those involved in eSports will encounter on a regular basis?
Hersemann: The first legal issues competitive gamers will run into will most likely be their own contracts. Employment contracts dominate eSports, and unfortunately far too often in a negative way. The majority of competitive gamers are on the younger side, and very eager to play games for a living. The exciting prospect of going pro sometimes clouds their judgment and they enter into one-sided contracts that actually exploit them. If you are a competitive gamer, it is best to have any contract you are considering reviewed by an attorney before you sign it.