Suppose you’re making or producing a film and you realize that, with the release of a new Tolkien-based movie, The Hobbit: An Unexpected Journey, many consumers are going to be in the mood for purchasing audiovisual content featuring small people and fantastic settings.  You’d like to be able to profit from that enthusiasm, making a movie about small people and monsters and associated elements of the fantasy genre that Tolkien helped to  create.  There have been plenty of these sorts of movies — see, e.g., from the 1980′s: Time Bandits, Willow, The Dark Crystal. So clearly the Tolkien estate doesn’t have exclusive rights to movies featuring magic, elves, fantasy monsters, and small people.

But does it have the exclusive right to movies in that genre that include the word “Hobbit” in the title?  This is, of course, a question of trademark law.  And the preliminary answer to that question is, apparently, yes.  See the reportage here. In short, the makers of a film entitled “Age of Hobbits” were recently ordered not to distribute their film on the basis that consumers could become confused about the origins or sponsorship of the movie, thinking that the film had some relationship with Tolkien’s books, Peter Jackson’s Lord of the Rings films, and the associated “Hobbit” marketing and merchandising empire.

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James Grimmelmann just noted New Jersey Executive Order 105 (Oct. 31, 2012):

NOW, THEREFORE, I, CHRIS CHRISTIE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

1. Celebrations of Halloween scheduled for October 31, 2012 in all parts of New Jersey shall be held on Monday, November 5, 2012.

(Cross-posted from Terra Nova)

A few days ago, there was an interesting ruling in the Triple Town / Yeti Town game cloning case, a.k.a. Spry Fox, LLC v. Lolapps, Inc. Triple Town and Yeti Town are both casual puzzle apps where tile elements are assembled and evolve.  Spry Fox had sought to license the game to the defendants, but the defendants pursued a cloning strategy instead.  The litigation presents roughly the same sorts of legal issues as the current EA/Zynga dispute and the recent Tetris clone decision.

This particular case has been talked up pretty extensively in the blogosphere over the last year.  For instance, James Grimmelmann had some thoughts about the early stages of the litigation and game cloning generally:

“if Triple Town flops on the iPhone because Yeti Town eats its lunch, at
some point Dave and his colleagues won’t be able to afford to spend
their time writing games any more.”

Eric Goldman weighed in yesterday on this new ruling, connecting it to the EA litigation:

“The Triple Town ruling suggests that Zynga probably can’t score a quick win.”

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William Ford and Raizel Liebler recently wrote a great article about how games have historically been of treated as a second-class medium when it comes to the right of publicity. On that topic, I’ve got a short essay up over at Gamasutra about the Hart v. EA case, which is currently pending in the Third Circuit.  If you have not heard about the case, more information can be found here at Harvard’s Berkman Center, with some excellent commentary by Andrew Sellars on the issues raised.

For me, the fundamental question is this — if you create a video game and you want to include in that setting an indentifiable individual, do you need to pay a licensing fee to that person or the heir of that person?  And the basic answer for me is this: if games are like books (and not a second class medium) there should be a wide degree of freedom to make references to celebrities without a risk of infringing publicity rights.

In my opinion, the Hart district court (at least in broad strokes) got the case right.  Now that we have EMA v. Brown on the book, federal courts should not be shy about protecting the creative freedoms of game designers.  But given the shifting cultural intuitions about “owning” personal identity and the growth of licensing culture (which Jim Gibson has described), I am not entirely confident that the zeitgeist is trending positive.  We’ll have to wait to see if the Third Circuit in the Hart case will get this right.

The Journal of Virtual Worlds Research will be publishing a special issue dedicated to law and virtual worlds.   Dan Hunter, Melissa de Zwart, and I will be editing the issue.  The Call for Papers and more information can be found here: http://bit.ly/CFP-lawvirtual

Here’s an excerpt from the site:

This special issue will focus on legal questions generated by the creation, regulation and participation in virtual worlds. We are looking for papers that explore beyond the basics of ‘the magic circle’ (asserting that virtual worlds are immune from external laws and norms) and consider emerging legal issues that may encourage or inhibit the uptake of virtual worlds. In particular, we are interested in papers that adopt a multi-jurisdictional focus and which propose new ways that the legal issues may be approached by developers and regulators. Innovative and creative papers are encouraged.

Given the audience and nature of the JVWR we are looking for papers which are accessible to a non-legal readership. They should demonstrate a good awareness of the nature of virtual worlds.

So all those eager to move beyond debates about the magic circle, please submit a 600 word abstract before June 30, 2012.  Again, more info on the website.