Famous Last Words September 2010
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DISCLAIMER: This column is intended for general educationaland entertainment purposes and is not legal advice. Every situation is unique. Anyone entering into a contract should have a lawyer who can provide counsel.
Jim Charne,
Attorney at Law
Why Schwarzenegger v. EMA is important for the Games Industry
(September 2010)
Dear Readers:
In its October 2010 term, the United States Supreme Court will hear oral arguments in a case that is of great importance to everyone who works, or wants to work, in the games industry.
1. The Background.
Schwarzenegger v. EMA (Entertainment Merchants Association) is an appeal of a decision from the United States 9th Circuit Court of Appeals to a challenge to a California law restricting sales or rentals to minors of so-called “violent video games” – games that, according to the law, contain depictions of violence considered offensive to the community, or violence that is depicted in an "especially heinous, cruel, or depraved" manner.
Under the California law, game manufacturers and distributors of such games would be required to apply 2" x 2" stickers displaying the numeral "18" on their front covers.
The Video Software Dealers Association (VSDA) (now the Entertainment Merchants Association), and the Entertainment Software Association (ESA – who produces and presents the E3 show) filed the original suit challenging the law on October 17, 2005.
The history of this litigation is very favorable to our industry. On December 21, 2005, U.S. District Court Judge Ronald M. Whyte of the Northern District of California, sitting in San Jose, granted a preliminary injunction to bar enforcement of the law. His ruling stated that the law most likely violates the First Amendment freedom of speech.
After further arguments, the preliminary injunction was made permanent. Judge Whyte found that the law did, indeed, violate the First Amendment.
The order granting the permanent injunction can be found here:
But the First Amendment is not an absolute guarantee of free speech. Under certain circumstances, where the state can show it has a compelling interest to restrict or regulate speech, and where the restrictions are the narrowest possible, restrictions can be permitted.
Such a standard has been applied in considering limitations on sexual pornography or other explicit depictions, in a First Amendment context. As far as I know, no such restrictions have ever been applied to extreme violent content.
On appeal, the 9th Circuit Court of Appeals ruled that the law violated the First Amendment and did not meet the standard required for restrictions to speech. The Court also expressed concern that any standard set for limiting speech in games could also apply to mainstream literature, movies, television, and other forms of expression, which could then become subject to content restrictions.
In addition to affirming the lower Court, the 9th Circuit Court of Appeals awarded plaintiffs nearly $300,000 in attorneys’ fees reimbursement to be paid by the State of California!
The 9th Circuit Court’s opinion can be found here:
http://www.ca9.uscourts.gov/datastore/opinions/2009/02/20/0716620.pdf
The State of California appealed and the United States Supreme Court agreed to hear the case.
2. Why this Case is Important to All of Us.
As a relatively new media, a new form of artistic expression, games have suffered attempts to limit or control their content, as states and localities have set about to impose standards and requirements.
New media and new forms of expression are often subject to this sort of reaction. Lawrence Welk’s style of music scandalized parents accustomed to Strauss waltzes when he stormed out of Yankton, SD in the late 1920’s. Comic books were blamed for juvenile delinquency in the 1950’s. Rock and roll was banned; artists like Elvis, Little Richard, and the Rolling Stones were seen as damaging to public morals and adolescent development. More recently, rap and hip-hop music have been vilified for their content.
But each has survived and flourished without governmental restrictions on what can be created, heard, seen, published, or to whom they can be sold (note: from my own adolescent development, coming through the comic books and rock and roll hysteria, I am none the worse for wear!).
Games have run into the same content issues as earlier popular content. Laws have been passed around the country which seek to impose restrictions on content and sales or rental. These battles have been fought in the past but claims are made that games are somehow “different.” In each case, these restrictive laws have been challenged; and in each case, our industry has prevailed.
In going before the United States Supreme Court, the industry will argue that games are a form of artistic expression, fully equivalent to other creative mediums, and deserve protection equal to that afforded movies, books and other works.
If the Court sees fit to agree, games will once and for all be recognized as subject to full Constitutional protection.
This will be a milestone for our industry.
AIAS and IGDA are co-operating on the writing of an “amicus” (friend of the court) brief that will be filed in support of EMA. Other industry organizations such as the Entertainment Consumers Association (ECA) are also participating in preparing similar briefs.
Counsel arguing on behalf of EMA is well versed in these issues – having argued and prevailed state by state as content and sales/rental restrictions have been passed into law, subsequently challenged, and overturned.
There’s no doubt this case will receive major media attention when we get closer to oral arguments.
We’ll all be watching closely to see whether the Supreme Court will acknowledge that games are an equivalent artistic media to other forms of creative expression and entitled to full Constitutional protection.
Jims Bio
Jim Charne practices law in Santa Monica, CA (www.charnelaw.com) where he represents developers, designers, composers and other clients in the games industry. Jim has been a frequent speaker at GDC, is active in IGDA from whom he received an “MVP” Award at GDC 2006, in 2010 will chair the Practicing Law Institute video game law segment the week after GDC at its annual Entertainment Law Symposium in New York, and is a member of the Advisory Board of G.A.N.G. Jim served as President of the Academy of Interactive Arts and Sciences from 1998 to 2001.
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Famous Last Words is intended for general educational and entertainment purposes and is not legal advice. Every situation and circumstance is unique. Anyone entering into a software-related contract should have an experienced lawyer who can provide counsel throughout the process.
©2010 Jim Charne. All rights reserved.
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