Law of the Game on Joystiq: Bar Hero

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

It's starting to seem like all I ever post about is Guitar Hero, but the game keeps presenting new and interesting issues to examine. I received an email from a reader who goes by 'mmmbeer' about a local bar that's doing 'Guitar Hero' nights. According to mmmbeer, they are "a lot like karaoke nights but with drunk people getting on stage trying to push 3-5 colored buttons on little plastic guitars." On the increasingly rare occasion that I make it out of the office to a bar, I've actually noticed these types of events in my area as well, and not just for Guitar Hero. One local bar actually has a weekly Wii tournament. In any event, mmmbeer was wondering what sort of legal ramifications might be associated with these types of events. And really, that's a two part question: what legal ramifications are there for in-bar tournaments; and are there special considerations for music games with real music tracks, such as Guitar Hero and Rock Band?

Simple as the questions may be, the answers are far more complex. The answers, though, all stem from the concept of licensing under copyright law. (Of course, I'm purposely excluding the issue of whether bar advertisements may be violating trademark law, in the event they are using unlicensed trademarks, just to simplify the discussion). I suppose the first question to ask is 'What is a copyright?' My answer, as usual, is a bit of a historical footnote. The term 'copyright' actually comes from England, in the period just after the printing press was invented. The Statute of Anne was the first real copyright statute, which gave publishers an exclusive right to print for a set period of time. That is, they had the exclusive right to make copies of the text, or a copyright. That has evolved into the modern concept, where a group of rights accompanies authorship, what is collectively referred to as 'copyright.' (Tip: Those of you who tune out for my historical footnotes can start reading again.)

So, 'copyright' is really a bundle of rights, each of which can be transferred independently or as part of a group. In the legal world, this has been given the unfortunately dull analogy of the 'bundle of sticks.' Each right is like a stick, and the author can transfer all or part of any stick or any number of sticks from the bundle. The rights in question include the right to: produce copies of the work, distribute the work, import or export the work, make derivative works (i.e. sequels), perform or display the work publicly, transmit or display the work, and sell or transfer (i.e. license) the rights to the work.

So, what does this have to do with the games? Pretty much any game you buy, just like DVDs or music tracks, is licensed for personal use only. Basically, that means so long as you're using it in your house, apartment, trailer, RV, or whatever else, you're just fine. It's when you cross the line into a public display of the item that you're violating copyright, and at a technical level, activities like school or church lock-ins are over the line into the 'public' realm. Accordingly, use in a bar is well within the public realm. This is where things get a little trickier. Unlike the readily available versions of music and TV for use in public, I'm not aware of a 'public use' version of a game, other than by contacting the developer. While this doesn't change the rights granted, it does present the possibility that developers are acquiescing to the issue and thus may lose the ability to enforce their rights.

Given that ambiguity, the music issue only makes matters worse. What a surprising few people know is that bars, restaurants, hotels, and other establishments actually have to buy licenses for the music played over the speakers. In fact, groups like ASCAP actually have roving bands of ninjas who do nothing but listen to music in places like bars and make sure all of the tunes are licensed. Similarly, Guitar Hero has to have licenses for all of its in-game tracks. Not surprisingly, this leads to two potentially different copyright issues: Does the bar have to have a license for the track? Does the license for the game's use of the track cover a public place?

The first question is relatively straight forward. Bars require licenses to play music. They are playing music. Clearly, some license needs to be in place. The second question is just as murky as the game issue itself, and really depends on what licenses the game developers have in hand. Until I get to review the actual licenses that, say, back the Guitar Hero franchise, I really can't comment on them. However, I would expect that they cover all authorized uses of the game, and given the ambiguity in that regard, it's really difficult to say what the answer is.

This gets even more complex when you try to think about the interplay of the two licenses. Say the bar has a license for the track, but the game's license wouldn't extend to public performances. On the flip side, say the game's license would be applicable in a bar setting, but the bar doesn't have a license for the in-game songs, be that some or all of them. Which license governs the situation, or do both have to be accounted for? The closest analogy I've been able to find is the use of a service like DirecTV in a bar. As you may or may not know, you have to subscribe to a special version of DirecTV for use in a business, such as this one. In this scenario, the bar is getting the show, which likely has licensed audio. The audio license is handled at the show level, not the bar level, and so long as the bar has the proper TV subscription, then the bar is in the clear. The approximation with games would be the license is handled by the developer, and so long as the bar has a version of the game that is approved for public use, then the bar is complying with the copyright.

In conclusion, copyrights are complicated. I imagine that issues like these will be resolved in due time, as the questions presented are relatively new in the grand scheme of the history of copyright law. In the mean time, if you happen to be a bar owner planning a weekly Guitar Hero night, it may be in your best interest to speak to someone at Activision.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.