Sure, I am Ryan Morrison. I am 29 years old and I work out of New York, New York. I am a game attorney, one of a handful that practices as outside counsel. So, most of the major companies have in-house counsel, and I'm one of the few that truly has a client list that is at least a majority game clients and that runs our practice around it. There’s very few attorneys that have a practice like mine, but I’m happy to say the ones that actually do are all great. There’s just a lot of folks out there calling themselves game attorneys that have no business doing so. If I get a contract from them on the off chance they do get a client, it's pretty obvious they don't know what they're talking about.
And that's a roundabout way of saying what I do for the game community really is protect, with my client base in particular, I try to protect the "little guy" against contracts and clauses that are either missing or that are in there that are really gonna hurt them in the long run because most attorneys are just not familiar with what Twitch is or what a Let's Play video is or things like that. So, when they're drawing up net revenue streams, for example -- and this is one of many issues -- but when they're drawing up something like that, most attorneys don't know what to look for there and it leads to a lot of lost revenue for a developer or even publishers in some cases. It's a major problem across all facets of law, whether you're registering a trademark and you're going too broad or too narrow or just putting it the wrong class of goods entirely. It really pays to have an attorney who truly understands not only the games industry but also the laws around it, and there's plenty of attorneys who understand the game industry and there's plenty of attorneys who understand the laws around it. There's very few that really get both and I pride myself on being one of them.
Obviously I know better than to ask for your client list, but what's the scope of the people you work with and represent? Is it people strictly in the independent development community or is it --
No. I represent some of the biggest names around. For lack of --
I'm trying not to put you in an uncomfortable spot.
I mean, some of it is public record. You can go through my trademark registrations and see some of the bigger names. I've registered titles for companies like GoG and things like that. But, yeah, I work with a wide range of clients. I'm very lucky to. I do work with, you know, the guy in his dorm room that I met from my Reddit AMA who just needs some cheap help and I try to help them cheaply. And I still think I bill very fairly and affordably, even to the big guys, which causes some bad blood within the legal community, I'm sure. I know firsthand some attorneys don't like my billing practices. [Laughs.] But I don't really change them from the guy in the dorm room to a company like GoG. I keep everything pretty flat rate and it's brought in a lot of clients that are, you know, very big time just because they were sick of spending $800,000 a year on legal fees and I can do very similar work for quite a bit less. So I've been able to sync up with a lot of really good companies or a lot of really good guys.
And the perk of running my own firm is I get to tell people, "No," also. So, I've had plenty of opportunities to work with just people who ideologically are very against what I'm doing. They're the kind of person who wants to send a cease and desist for $10,000 'cause you used their photograph on your blog about cooking or something like that. I just want no part of that. If ethic rules allowed, I would have messaged that blog and defended them for free.
But that's the perk, certainly, of being my own boss. I get to choose who and when I work with people. Not that I put my philosophies above a client. Once you're a client, of course, your wishes are my command.
[Laughs.]
But in the initial consultation period there's a good weeding out process.
Well, yeah. One would think if you're going to go into business for yourself that you would work the way you want to work.
Yeah. I'm very, very, very lucky that I get to work the way I work in an industry that I love.
So how does one become a game-industry attorney? What's the path that took you there?
Sure, so I get asked that question -- not boasting or tooting my own horn or even exaggerating -- but I get probably 50 résumés a week, and I probably get the same number of separate questions saying, "Hey, I'm in high school or I'm in college. How can I be a game attorney? It looks awesome."
The first of that is it's a lot of work. [Laughs.] People think that I'm just playing games all day -- which, I certainly get to play games sometimes but it's also a lot of real work. I am working 18-hour days and really just around the clock. At the same time I get to go to Ireland on a whim and meet with a client and it turns into a nice business trip and "happy trip." [Laughs.]
[Laughs.]
So it's a great, great, great thing. How to get here is very -- it's different from when I did it, certainly, because when I did it, even though it was not that long ago, there wasn't a lot of people doing it. In my age bracket, anyway. There's attorneys that have been practicing for 20 years and were excellent; I'm just catering to a different need, I guess.
I guess it's been put bluntly by those attorneys themselves and I speak on panels with them: They just don't have the time or energy to keep up on all the new technologies and things that I was just keeping up on because I'm interested in them.
Yeah.
When it comes to the game industry, are there some practices that have been allowed to take hold only because it's sort of been siloed away from mainstream media attention or media attention and the fact that it's also an international market that grew really, really fast?
A million things are running into my head but I'll try to talk about a few of them. [Laughs.]
So, the first one that popped in my head while you were saying that was actually unions themselves. So, I'm sure you've heard or can easily find out about the issues going on with voice actors right now with SAG-AFTRA and there was the very famous -- or at least Reddit famous -- issue between Austin Wintory and the American Federation of Musicians, which I was lucky enough to help Austin with.
You know, it's just -- all of those things boil down to those companies and those unions and those businesses and those industries think they own entertainment, they understand entertainment, and games have no place in entertainment.
So, despite the fact that games have grown faster than any industry probably in the history of the Earth, and despite the fact that games make more money than music, movie, and TV combined at this point, the rest of the entertainment world still thinks games are for kids, it's a fad almost, and they're dealing with it the way the music industry dealt with Napster, which is to say wrong. They are not preparing properly, they're putting all these rigid rules in place, they're penalizing people for working in games or making it more difficult to work in games, and instead of fostering this community and saying, "Hey, we're gonna grow with you," they're instead saying, "We're gonna try to block as much of this as we can so our guys who have a living in music and TV can keep being on top of everything.”
So that's just a major thing that keeps popping up across the board.
In terms of lawyers protecting people, I think it's very much the same thing where it doesn't matter if you're a multi-million dollar game company. They still look at you the way a lot of people would look at a kid making a game in his dorm room. They think games are a passing thing where it is just something for the youth and it's not going to be very sustainable, and the fact that a lot of law firms who call themselves entertainment law firms don't have a games department at this point is ridiculous to me, but so many don't.
In fact, I can probably name the ones that do on my hand. [Laughs.]
And the ones that do are absolutely amazing. I'm not knocking -- Gregory Boyd and Sean Kane at FKKS are absolutely two of the best game attorneys I know across the board and they are at a big law firm. So, it's not that that stuff's absent. That's the minority.
It's changing. I mean, if you look now: If you Google "videogame attorney," there's 300,000 new lawyers or recent graduates calling themselves game attorneys or saying they're a game attorney, and that really just boils down to they like games and they don't have another job.
That's not, of course, everyone. A lot of them are truly working in the industry. I want to be careful that I'm not knocking my colleagues, but there are a lot of people on there who have never had a client, potentially never will have a client, and they call themselves game experts and game attorneys. It's a little dangerous for the developer because it's hard to weed out who's real.
I mean, certainly, when I came into games I thought I knew more than I did. So I'm not knocking even the guys doing it now because it's the same way I jumped in.
I opened a solo shop and just kind of ran with it.
But it is -- looking back on it -- dangerous for some of them in some aspects, and going forward the same kind of problem. And until -- and it's not just the legal community's fault here, either, 'cause as much as they don't cater to the game space, the game space has done their best to not invite any kind of protection from anything, let alone lawyers. They're very quick to put you at a stake if you do talk pro-copyright or pro-trademark or things like that. Yet, the second their game's stolen, all of a sudden they stop being advocates for open source and piracy and torrenting. So, it's a real big thing -- that is something I'll toot my horn about: I do think I've helped a lot with that. On Reddit, the game developer AMA's that I do and some other places, where I really try to explain it's not a bad thing to protect your hard work. It's not that you have to be pro-patent law and against new medicine and things like that, but you put your blood, sweat, and tears into a game for three years, you should be able to sell that game without fear that someone's gonna immediately clone it and steal it.
I want to pierce some of the weird veils of silence over game companies and the game industry. Why is it that crunch is the one problem that people feel safe acknowledging as existing in the industry?
Can you elaborate on why you think that's the only one people talk about?
Sure. When you look back at something like EA Spouse, who's to say what really has changed since then because you're not able to find out that much about what the culture is like at these game companies. You still hear stuff mainly through their marketing or the products they want to sell.
But when I ask people in these interviews, like, what they'd like to see change in their industry, crunch is the one thing people will talk about or they'll just insist other things pertaining to their work conditions are boring. Or there's just nothing else they want to dredge up. There’s always this thing in these interviews where I get this sense that people are like, “I wish someone else would talk about this.”
That's interesting. I mean, I certainly believe you and I know that's a popular discussion point. That's just surprising as the one that appears the most. I guess that's the one people can talk about with the most confidence they won't be fired or not welcome to their next job interview. It's a safe thing to work about: "Oh, we work too much." [Laughs.]
And then you sound kind of -- it's a humblebrag by saying, "Oh, it sucks that I work 20 hours a day and I make such good games." [Laughs.]
Yeah, that's like what you say in a job interview.
[Laughs.]
So, how did crunch get to be the one "safe" thing to talk about? Why is there not more widespread talk about other concerns?
I do think it's partly that, where it's a problem that people can boast about how hard they work while complaining. It's something the public has really made it clear that they feel bad for. This is probably wrong, but I think the first time I remember hearing that, and I don't want to name the wrong company, but wasn't it Rockstar Australia or something where this really became front page news, where the employees were working 80 hours a day basically?
Oh, are you talking about that LA Noire stuff?
Yeah.
Yeah, I think there was a thing where people weren't even properly credited or credited at all.
Yeah. That was the major concern. They had worked, quite literally, 200 hours a week sometimes. I mean, not quite literally, but they didn't even get any credit.
The other thing I heard was from a writer who quit on a project and so even though he wrote the story, he didn't get credited.
Yeah, I mean, that's a huge issue I see a lot.
It'll be two friends. One friend came up with all the ideas, all the story, the other was the actual artist and implemented everything. The artist owns everything. I mean, unless your idea was a script that he's using verbatim, you're out of luck, buddy. That's just how intellectual property works. You don't own ideas. You need to actually mean something.
I'm talking about a guy who worked on, like, Call of Duty.
Right. So, that's different.
Why are game companies able to operate that way?
It's because that writer, I bet, didn't have a lawyer look at his contract. And I know that seems very self-serving, but there is very, very few times when I've been handed a contract by a potential employee -- and in a Blizzard versus contract negotiation, I'm gonna be representing the employee. And not to call out Blizzard. Blizzard is actually one of the fairest and nicest companies I've had the pleasure of working with, which I've said on my Reddit AMA's, too.
That said, across the industry, those contracts usually start very unfair. The publishing deals start very unfair. The claim ownership for everything, they don't have a lot of incentives. Revenue is defined in a way where you'll never get a dollar. And that translates to your contractor agreements, to employment agreements, to contractor agreements where they should have been employment agreements, etc., etc., etc.
The less powerful one in the negotiation almost never has an attorney look at their thing 'cause the game industry is so keen on saying that lawyers are bad and you're a jerk if you bring a lawyer to a negotiation. I've never once had a deal fall through because they brought a lawyer through. All we do is make a more fair deal and we get both sides a relationship where you guys can now row together happily, and there is some loyalty there 'cause you know what you're signing. You're happy with it. And the other company's happy you're happy. They want you. It's not like they're picking employees out of thin air.
As many artists and writers and developers as there are, they really need to start realizing that they're not a dime a dozen. If a company likes your artwork and wants to hire you, they didn't just do that on a whim. They like you. You did stand out. I think that kind of self-confidence needs to appear more in developers and artists and everything across the board 'cause that's why they go into these negotiations just so quick to sign whatever's in front of them.
And that leads to a lot of crunch. I mean, that mentality is so popular on that side of the game industry where -- crunch exists because they don't want to speak up and say, "Hey, I would love to have lunch.”
[Laughs.]
Where there's this team, cult mentality that's bred there where it doesn't matter if you're hungry. We're not hungry, so we are gonna finish this game. We have to put this out. And you know, you get paid the same if it does or doesn't.
It's definitely a major issue. The only other issue I hear talked about more and more is -- and maybe because I spend too much damn time on Twitter and Reddit -- is "Gamergate"-related issues, which -- [Laughs.] We don't even want to get into all that.
We can.
I don't have too much to say on it other than a lot of people make a lot of money off of it on both sides.
How?
I work in games everyday and I work with a lot of really strong and intelligent women, and the ones I hear who constantly bring it up are usually the ones who aren't working and trying to make money off their YouTube channel complaining about it. And I'm not pointing to Anita Sarkeesian or anything like that. I mean even just on a much smaller scale.
But, you know, there are more and more every year -- since I was working as a developer and when I was doing unpaid work in undergrad, every year you see more and more women in the industry, which is wonderful. And I think the animosity on the internet is the same stupid fools that have been yelling at us in World of Warcraft for 20 years except they're older now. You know, those guys are just idiots and you've gotta kind of shut them up and ignore them.
Do you feel like -- should game companies have --
Affirmative action for women?
Just -- there's a guy I know who works at a big Japanese game company. He told me the companies don't really stick up for their employees when they get targeted in this way and as he put it, people just become "the unfortunate face of projects.”
Where they step into the spotlight and do all the PR, but the internet will do what it can and shovel vitriol and anger over a title not turning out "the right way" and they'll just take it out on that one person.
I mean, that issue, though, is gender-neutral in the sense that that vitriol's coming regardless. It's just going to be worded very differently if it's a woman. And that's not okay. I'm certainly not saying it's okay.
Cyber-bullying to a point becomes a crime, and it's a real crime, and it's something that I think should be dealt with more harshly when -- especially with things like SWATting or things like that, which I know is not necessarily this, but there has to be a line that just because you're on the Internet doesn't mean you're anonymous and free to do what you want.
So, but I mean, my question is do other industries stick up for their employees when things like that happen?
I mean, the first part is I don't really work in any other industry, so I wouldn't even know. In this -- I would say in the game industry, that's a very interesting question. I kind of have the benefit of seeing things -- I see things through the kind of victim lens where I am usually working with that side of the issue. So, I just -- I don't really see it at its base, where you certainly are or you've seen more about it.
I certainly won't pretend to have the answer to it, what they should be doing. I think that the first thing everyone should be doing is acknowledging it's a real problem without then getting on the highest of horses about it.
Has the industry acknowledged that this is going on?
They've acknowledged it certainly a lot more. If you go to a PAX event, for example, now they're going to be three or four panels on just this. So, it would be silly to say the industry has ignored it. It's been in headlines, it's been at every convention I've been to. It's been at every business event I've been to in a more formal matter. The Chicago Video Game Bar Association had an event where one of the panels was just about women in games. It's certainly not something everyone's ignored. But is there more you could do? Definitely. Is there a smarter way to do it? Almost definitely. [Laughs.]
Well, hindsight. For some.
Of course. I think that's the real answer, is that -- everyone needs to take a breath and then kinda come back at this. I really feel like there's such a line in the sand drawn and you're on this side or you're on that side. It's not healthy for this at all. It's not healthy for the industry at all. And it's breeding just more hate on both sides.
Have you seen publishers or developers make a statement or acknowledge it? The things you're talking about are --
That's very interesting. Not publicly, I guess. I've certainly been in the room on conversations, and I won't say with who.
Sure.
But I can tell you it's certainly in the ether and they're not talking about it in the sense of, "We gotta get some damn women in here so people shut up."
[Laughs.]
They really are having revelations where they say, "Oh, wow. We don't have any women on this team."
And it's like it just hadn't been thought about because it's harder to find a female non-artist in the game industry. And I'm not knocking female artists by any means, but that's usually -- if you look at employment statistics, usually the females that are employed by a game company are working as artists. It's changing. There's more and more programmers and across the board developers coming at in at different areas. And that's awesome.
And it's turning from game companies saying, "We don't have any women because we can't find any women," to, "Oh wow. There's all these women applying, we should really look at this to get a different perspective and to have a different idea on this, etc., etc.”
So, it's good.
So I understand why you can't say who those people are. But isn't that a good thing? Wouldn't they want to be communicating that?
I mean, I would think so, but I understand why they don't and they've been very clear that they don't because -- well, you have to understand that the idiots spewing all this garbage are also the idiots that are lining up at midnight to buy their game. I don't mean you have to understand, I mean you, globally, have to understand that.
The royal "you."
Yes. The royal "you" has to understand that that's why no one's being too loud about this, because there is such a line in the sand. So people are afraid to talk about it because you don't want to lose half your clientele.
Why are there so many NDAs in the game industry? Even inter-departmental NDAs where people can't talk to other people at the same company? People can't talk about what they do with friends. Do you think it's excessive?
Uh, yeah. NDAs are used when they shouldn't be and not used when they should, almost.
[Laughs.]
From my experience, the NDA really is just they think it's best practices. They think it's better to not have ideas be leaked that way. They think that people can't possibly steal things that way. So it really is just protection of IP, truly, in most cases. I don't think there's anything nefarious there, I do think it's just maybe silly practicing of the law.
Yeah. Well, I mean, I think it's getting to the point where it can be damaging where it makes it very difficult to be a fan of the medium or even a writer on it if some information you just can't get. It makes it very hard to cover the medium if some people refuse to ever talk to you.
I'm curious, too: Has the ability to be away from scrutiny -- how has that impacted the way the law or the business works?
Yeah, I mean, game journalism has been in a rough shape for a while now because of things like that and because of public trust and etc., etc.
The NDAs -- I don't think they were put in place to stop game journalism if that's what you're asking, but I think that they've certainly hurt game journalism. I mean, you can see the DMCA takedown requests for bad reviews. The companies just want to be in total control of who's writing what about their games. And that's what it boils down to. And truth be told, a lot of the game journalists around are happy to write what they're told because they get to still make a living out of being a game journalist, then.
And I'm very good friends with a lot of journalists who are very -- almost too rough sometimes with their writing and what they do "keep it real." But there's a lot who don't and there's a lot who very obviously don't.
And they are happy to take a handout here and there in order to write a certain way. And that's just kind of how it's always gonna be. I'm sure that's how music and movie reviews are: just the same.
You mentioned NDAs are misused. What do you feel are the most absurd examples of self-protection you've run into from game companies?
Oh, wow. [Laughs.] That's a -- I really don't even know. [Laughs.] Like, so many things almost popped in my head and then didn’t. So, I mean, it really is just that. It's the following of law based on an article they read 20 years ago about how things are supposed to be done in the entertainment industry or the creative industry and they aren't using it right. There is no reason to have cross-departmental NDAs in most game companies, I'm sure.
There's signs of this everywhere, where every employee is under a contractor agreement even though they're definitely an employee. And the company is saving a lot in tax money and payroll and benefits because they're just mislabeling everything or knowingly mislabeling things. Self-preservation, I mean, I've seen companies fire an employee and claim they own everything he's ever made because his personal Dropbox synced to his work computer and they said that because it's on a work computer, we own all that, and it was games he's been working on for 20 years. So, I don't know. Self-preservation is a hard question because a lot of it is very secretive and every single thing I have I can't share, so I just kind of rambled. That's the one downside of interviewing an attorney.
It's okay.
I guess most of the reason I don't know the other stuff is because they hid it well.
You're saying follow the money.
[Laughs.] Follow the money.
Follow the money. Follow the money. But you're saying I'm asking the right questions?
Yeah. It certainly happens.
Yeah, but I mean, this is exactly the sort of thing that makes it hard -- and it gets a little sad when, like, the president of Nintendo dies or Konami is imploding and all these things that were formative to the industry as we know it today, it's about far more than business documents that they'll be taking with them. It's context and, "Why is this thing this way? Why did that person do that?"
I also have a hard time believing that those AAA studios are the future of this industry. I think it's instead going to be filled with a lot of really niche mid-tier studios catering to everyone's specific wants and likes.
Is there always going to be a Madden? Probably. Is Call of Duty gonna be every year? I find that a lot harder to believe. I think there's too much competition. I think there's too much of a switch to the PC space where Call of Duty doesn't have a foothold at all, really.
And it's -- I think all those self-preservation tactics and all those kind of old guard are passing away or passing on the industry? They're not being replaced. I mean, who's the new Nintendo? There isn't one.
Instead, everybody's playing a game that's the app of the month or they're downloading a game off Steam that's really popular right now. MOBAs are coming on and changing everything in a huge way. Esports are going to be what our kids are watching, so all a sudden that's the game they watch and that's the game they're gonna be playing.
And before you know it, their AAA studio life is just not there.
I mean, certainly you can't fault anyone for reverting to self-preservation. It's interesting because I wanted to talk to you about this thing that you said in your email about game developers: "A lot of them don't realize how carefully they're being watched."
Right. And I don't know where I I said that, but that sums up so much of what i think. [Laughs.]
So, tell me a little bit about that. Who's watching us?
It's these four guys in cloaks in a floating island -- no.
I knew it!
Really, what is happening -- so, this is so commonplace. I get at least one of these a week where somebody will say, "Hey, I made a mod for a game. It has a thousand players. Our forums really like it and they've all convinced me to sell it separately as a game. How do I do that?"
Well, you can't do that because you made a mod to a game that exists. They own their IP and you can't just change this, this, or that and have it be a new game. You have to substantially change it. If you want to have the legal definitions, you can hyperlink it as transformative versus derivative. A transformative work is basically, "I changed this enough where I can't tell the source that inspired you." Derivative is, "I can look at yours and immediately know where it came from.”
So, if you make a Half-Life mod but it's different enough that I can't tell you did this with Half-Life, it's potentially transformative. If you make in Half-Life that is clearly a Half-Life mod where you just made it more fun in your opinion or other players' opinions, that's not transformative. That's derivative and they own that. You can't sell that.
So, these games. Let's say they have a thousand players. All of a sudden they start to sell their game for $3 and they get a little initial sales boost and, fine. Now they have that confidence and they're saying, "Well, I had an initial success here so I'm gonna now do a Kickstarter for $200,000. I'm gonna get a publisher and I'm really gonna go to town with this and try to sell it everywhere.” Boom. All of a sudden they have a huge cease and desist, a huge demand for money against them, they have to take their game down, show all their books for every dollar they've ever made, etc., etc., etc., and they've been being watched since they were just a mod with 20 players.
That company knows very carefully -- they have an entire department, probably, watching the mod teams and where the players are actually playing their game. And if the players are playing their game in this specific mod and this specific mod's growing, they're not gonna let that happen except in the rarest cases where if you look at something like Black Mesa, which is one of my clients, Crowbar Collective, they made a Half-Life game, Valve said that was awesome, and they had enough support where they said, "This is easy money for you, Valve.”
So instead of taking the game down they came up with a revenue split and everybody's happy. And I didn't represent them on that revenue split, so I won't pretend to know the details of that or anything like that.
But it's -- that's the rarity, by far. More often than not, you're gonna get a huge cease and desist. A life-ruining demand for money and all because you thought people really needed the original models in your version of the game. Or really needed that same exact map layout because that's what people like. That's fine. But you have to understand that you're now stealing someone else's work and that's not okay in this industry. That's not okay in any industry.
That's the law. That's what copyrights and trademarks exist for, it's so you can't just take someone else's hard work and say, "This is mine now."
Do you think that's a mentality that has risen as a result of the internet?
Oh yeah. Entirely. I mean, stemming from Napster, everyone has completely stopped believing that people own things.
[Laughs.]
I was of age to download a lot of stuff off Napster. I thought Napster was awesome. I didn't think, "Oh, I'm stealing money from someone." I thought, "Oh my God, this is awesome. Free music." And I thought the same when I was downloading movies and etc., etc. from the the Internet. The Internet has completely removed the, "I'm taking this from the store, I hope no one sees me." And now it's just, "Oh, I'm still on my computer. I'm sure no one's gonna see me, so whatever.”
People are thieves when they're not being watched. [Laughs.] That's just general humanity.
[Laughs.] You know, I probably don't believe people are good at the core. I'd like to. I think some people are, but I the majority of people are happy to take something that's not theirs or stab someone in the back if they don't think anyone's gonna judge them for it or see them do it.
So that's a big part of what all this is. And at the same time, it's also the next step of that, what it's evolved to: People thinking that now they can do it in front of everyone because everyone was stealing privately, so now we should be able to do it in public, who cares? So yeah, I'm gonna take Minecraft, I'm gonna change a couple things and now I'm gonna call it my game.
And I'm gonna sell my game and how dare Mojang come after me and say that this is theirs. This is mine. I changed their hat.
[Laughs.]
And that's just so common in this industry and it's a huge problem. I mean, I can't tell you how many at least years I've seen ruined for people where, you know, they mighta had a trip that they're not going on anymore or they mighta just put a down payment on a house that they're not getting anymore, etc., etc., because of some stupid app or mod or game that they had, that they thought they would never get a problem from.
What do you think the audience for games doesn't know about the day-to-day lives of people who work in games or make games independently on their own?
That they're -- that's an interesting question because they really are so different. You know what? That's how I'll answer this: It's not who they think it is anymore. I think when most people think of a game developer, they think of some guy sitting in his basement who works 900 hours a week, never leaves his home, has no friends or family, and just completely is devoted to his game.
When in reality, 95 percent of my clients have families or have girlfriends or boyfriends and they have a very active life. You can see them on Twitter traveling around the world, they're going to conventions and being friends with people or just playing football or soccer or whatever. It's not that stereotypical "nerd" anymore. It's now just normal people in society who make games 'cause everyone plays games now and games are fun. So, it's brought in a lot more people. And I think that's what people don't realize is that not every game developer is a white male in their twenties or thirties sitting in their basement.
There's no easy way to transition into this, but I did want to talk to you a little bit about the FTC guidelines for YouTubers and bloggers --
Oh jeez.
-- which happened, like, a couple weeks ago. That was about having to disclose the nature of paid endorsements. It seems like this is starting to become a bigger deal about stomping out deceptive "social marketing." What's the pulse or the temperature you get from within the industry about decisions like this?
Well, within the legal industry we hate this stuff. And this is why.
I scream from the rooftops to please self-control ourselves as an industry before the government comes in. Because everytime the government comes in, it's not good. The government moves so slowly and this industry moves so quickly that whatever dumb rules the government comes out with -- and I can already feel the guys in suits coming to my door. [Laughs.] But whatever rules they come out with, they just don't work. They're so easily loop holed around and they're so easily just ignored that by the time they fix it, we've figured out a new way to get around them.
You can look at COPPA, the Children's Online Privacy Protection Act. That's a famous way that the government got involved with the games space where they said, "If you have someone 12 or under playing your game, you can't track any metrics of them. You need to do this, this, and this." They've handed out some fines in the hundreds of thousands for COPPA non-compliance and no one understands the damn thing. COPPA's the most confusing piece of legislation anyone's ever read. And any kind of decision or letter they've sent about it is equally confusing. They use so many double negatives in it that it would fail even a freshman-level course. It's insane.
[Laughs.]
That's in their original letters they send out about it. I'll send you some. They're hilarious.
Please do.
But, to the FTC now, in stride, the FTC is not a bad agency by any means. They do a lot of really great work. They've stood up for the Internet here and there. They've hurt the internet in other places, but they've certainly stood up for it enough. They are not some evil group of cabal that's going to sit there and try to ruin things. And their intention's here are very noble where, exactly what you said: The social media marketing had gotten very out of hand.
And I'm not calling PewDiePie out for any reason, but I'm saying someone like him would get a substantial paycheck to play a game instead of just playing games he liked, like his fans thought he was.
And then, obviously, his opinion would change based on the pay.
I've equated it to payola.
It is payola. That's exactly what it is.
So what's the harm of someone doing something like that?
I mean, the same reason payola's bad. There's just a difference of opinion there in philosophy where it's not necessarily bad. I mean, why does it matter if they tell me they're paid if they're about to read me an ad about it anyway?
I mean, every podcast I listen to starts with a 30-minute spiel about LegalZoom or stamps.com. I don't think they all love LegalZoom and stamps.com. I know they were paid. So what's the difference?
None of your podcasts love Squarespace?
Oh yeah, that's the other one for all of them. [Laughs.]
And Birchbox.
And the other one's Blue Apron.
Yes, if you're listening to Alec Baldwin's podcast.
Yeah, right. I just advertised on two podcasts solely because I love them and I'm not gonna get a client from it but it was funny.
Those five sponsors have completely cornered the market.
Oh my God, it's hilarious, yeah.
What's the harm in payola?
I probably don't have the problem with it that everyone does. I know it's bad because it breeds dishonesty in people that -- the problem is there's a line between entertainment celebrity and true reviewer you go to for review or journalism. So, if you are saying something as a journalist, it's different than PewDiePie saying something about a game. I would have assumed he was being paid by different game companies. You, on the other hand, are selling yourself as a truth-teller and that is different to me if you start saying, "You know, this game does this, this, and this," and you're being paid by them to say that.
I do love Blue Apron.
[Laughs.] There you go.
Yeah.
No, but the harm there is that I, along with most of the internet, buy things on Amazon and everywhere else based on reviews.
And when those reviews are fraudulent, it's not okay. Does payola work or does a 30 -- I mean, the problem with the FTC thing here is compliance is an issue. Is it supposed to be at the bottom of your video the entire time? Can you just say it up front? What if everyone skips the first 30 seconds of a video?
It's hard to enforce.
It's very hard to enforce. It's very hard to comply with. And it's just absolutely not the correct answer although at least it's a step in the right direction, I guess.
I'm trying to figure out if this is a big deal or not and whether people would be shocked or not. There's a very well known games publicist who is great at being completely frank with writers. And he's a longtime industry -- I guess could call him a veteran just because he's been around for a while and has worked at a lot of different companies. Off the record he'll say, "Oh yeah, we pay money to streamers to feature our games." But you could never get him on the record saying that.
[Laughs.]
I don't know if that's damaging or not.
It's damaging 'cause everything is a PR battle nowadays. [Laughs.] The internet has collectively become six angry mobs. Reddit's a mob, 4chan's a mob, YouTube's a mob. However you wanna divvy them up.
Blue Apron is a mob.
Exactly. [Laughs.]
If you start that mob mentality where, "Oh my God! This company's paying for reviews, can you believe that?" Now, all of a sudden that has a million upvotes and everyone hates it.
But in reality, if everyone heard that news individually, they probably wouldn't have cared. It's different. And, again, it is different if they're paying a journalism website as opposed to paying an entertainment personality, in my opinion.
But maybe not everyone else's.
What more could journalists or the games media be doing to help the industry?
The problem is -- and one website does disclose everything that they're affiliated with and I'm blanking on who it is right now -- there needs to be more upfront-ness about who they're friends with, who they're having dinner with, and why they have opinions. If that stuff exists. The problem is sometimes that stuff just doesn't exist and they are just writing a legitimate article and no one believes it anymore. So, who do you combat that? Journalism's done everything they can to shoot themselves in the foot in terms of trust. So, I mean, there needs to be a campaign for transparency where you can see who's advertising, who's paying money, who sent in free copies of the game. Whatever. That's not something I've thought too much about but I do know that it's something that is obviously very seriously an issue where, you know -- I personally am very good friends with a lot of people at Defy Media and Escapist. So, does that mean everything at Escapist and Defy Media is gold? No, but I probably would tell you that if you asked me.
So, I get it. I very much understand it. This industry is very small where we all go to the same 10 conventions the same time every year and we all are friendly and see each other and no one wants to be the guy who's talking shit about everyone. But at the same time, that's kind of a journalist's job sometimes and that disappeared in a large way from the game industry.
Mmm.
Unless they're talking shit about people they have a lot to gain by doing it or it's universally agreed that everyone should be doing it.
Yeah. A lot of the stuff I am talking about and wondering about with unions and the game industry -- do you feel like there is some sort of entity in the game industry missing to urge for change or to hold people more accountable? I know the IGDA is typically pointed to as the group in the game industry but they, by their own admission, are largely just an advocacy group.
I -- I do work with the IGDA and I will not comment or respond.
Did I just offend you?
Oh, no.
Does there need be a countrywide union of artists and a countrywide union of programmers and a countrywide union of musicians? Maybe not. But why not? There’s a union of everything else so why not this industry that makes so much money, that has so many intelligent members. Why has no one said, "Hey, let’s make sure we’re not getting screwed here." And I really think it’s part of the open-source mentality that everyone has where the collective bargaining of everything, it’s a limit on free speech, it draws up lines where there don’t need to be lines.
But that kind of regulation, if it doesn’t exist, if it doesn’t start coming in a lot stronger, it's gonna come in from the government and it's gonna be a lot worse. Every game studio calling their employees contractors is gonna be a huge bite in the ass soon. The IRS is not ignorant to it happening. Every contractor that gets in dispute with their employer files a misclassification action and then has an audit at that game company. All of a sudden the IRS says, "Hey, we're doing all these audits of game companies. None of them have employees apparently. What are we doing?"
So, it's all coming and hopefully we figure it out first because even though I'd make more money helping everyone comply with the state, I'd be a lot happier as a gamer to have us figure it out for ourselves in both game development and eSports, where it's coming in just as strong.
That's interesting because I don't think people realize -- there's this two-tier system in most studios where you're a contractor who's basically full-time and then there are "actual" full-time employees.
At the AAA studios, they'll certainly have more employees than others. But with the mid-tier studios that make most of the games that are in the marketplace that everyone's playing, they have so few employees and they have a lot of contractors and they're not contractors by anybody's definition.
Do you have any numbers you can throw at me without naming names, like what's an example of the typical amounts of both at the bigger companies versus the smaller ones?
I mean, in most cases you can look at the company’s website and see how many contractors they have. Often times if their title isn’t CEO or CTO, they are working as a contractor. Even if they’re in the building every day and only work for that company on a full-time basis. It’s a bad thing in the industry that is starting to bite a lot of companies in the ass. I just had a client file misclassification against a mid level studio. Now they can enjoy audits for the rest of eternity.
But that’s more the 2-20 size studios. Over that, in let’s say a 25-person studio, I would expect maybe 10-13 people there to be contractors. I know the 20 to 25 jump seems arbitrary, but it’s just anecdotally where I see studios start to take this stuff a bit more seriously.
If this is the case, why is this not on the IRS' radar then?
I would say it's on their radar, it just hasn't been hugely followed through with yet. I do think the amount of audits coming are coinciding with the growth of money for mid-tier studios. So I think those two things are gonna hit in a big way where there's gonna be a lot more action and a lot of those contractors who start to realize they are being misclassified are using that as a very hostile negotiation tactic where they say, "Hey, give me a raise or I'm gonna go to the IRS and get all my backpay you owe me for my missed benefits." Everytime that happens is a huge issue, too, of course.
There's such a culture of non-communication about stuff where it gets hard to glean, like, what companies and the industry is really concerned about.
From the people I'm talking to, a big issue is protecting their own IP and getting away with using everyone else's, which is ridiculous. That's the majority of questions I get.
That seems a little at odds.
Yeah, "If I stole this game, how do I trademark this but also not get sued by them?”
[Laughs.] It's utterly ridiculous but that's what I mean when I say -- and I say commonly that this industry is in its infancy. And I mean that in its maturity level, too. Where it's so cool everybody wants to be a political activist and say that copyright law is wrong and stupid and everybody wants to stand up for the philosophies they believe in as they make games. And that's all well and good, but, fine, be prepared for a lawsuit.
You're not some special snowflake. It doesn't matter if your game's free. It's still infringing. You're still gonna get a lawsuit. It doesn't matter if you are only sharing it on one forum. If it's something the company doesn't like you're gonna get a cease and desist, at least, and a lawsuit at most. And they don't owe you a cease and desist like some people think. It's -- the industry is filled with teen angst in a grown-up level. We really need to get past that and start acting like adults, treating this like a business, and then it'll turn into a business. Right now it's far from it. The AAA studios might do something pretty correctly or most correctly than most, but the mid-tier studios and the independent game developers far and wide are not doing things right and they're not taking things seriously and they're not protecting themselves the way they should and they're not respecting the law they should in a sense that -- and I'm far from Mr. "Button-up suit and tie everybody be a good little child." I'm all about experimenting with limits and seeing what's in the industry that you can do and have fun with.
But there is some foundation of realizing, okay, well, laws do exist and we are a business making money and we need to operate as such. You can't just keep saying, "Oh, no, the game industry is different. We're the Wild Wild West." We're not anymore. The government sees how much money is here. They are making rules like this FTC rule and they're coming and the industry needs to be a lot more concerned about self-regulation and respecting itself as a real business before people who are not gamers come in and do it for us.
How receptive are people when you tell them that they need to start doing this or paying attention to this or thinking about this?
It's been a year and a half of the AMAs, maybe even a little longer at this point. I think a year and nine months.
But it's -- I would say for the first six months people were quite literally telling me to eff off unless I was giving them free legal work.
[Laughs.]
Now I think it's changed a lot, especially on Reddit where it's such a great community and everybody is quick to tell the other people to shut up if they're telling me to shut up because I have done -- I mean, as a personal rule, for every five hours of work I do I try to do one hour of pro bono work for somebody offline that has a good sob story. Reddit is a huge portion of where that comes from, so I have a lot of relationships on that website and that subreddit with the game developers.
So that kind of street cred has made people more receptive to hearing me on these issues elsewhere where they can say, "All right, I don't know what a trademark is, I don't really give a crap, but you worked with Ted and Ted's a really cool guy and Ted said I should listen to you. So, fine, let's talk about what it is.”
That's what I've seen more than anything else.
What do people never ask you about that you think they should start asking about?
The No. 1 issue I see is where it'll be two friends or two people meet online and they're making a game together and all of a sudden one of them meets a girl and moves halfway around the world or they lose interest in the project or whatever and then it's a huge question on who owns what. Yes, you should have an attorney draft you a contract, but even just you guys drawing up something in a Word document or writing in on a freakin' napkin is better than nothing saying, "I own 50 percent of this. You own 50 percent of this. All characters are owned by the company instead of either one of us individually." And then there's just no headaches down the road if you have all of that kind of laid out. Is there gonna be holes in it if you write on a napkin or write it yourself? Of course. But it's still, again, better than nothing.
The other major thing is people are quick to go on these websites. Fiverr was a big one a year ago and now I forget what the new one is everybody uses to find artists and contractors. But basically you pay a contractor for character design, let's say, you say, "Hey, I'm gonna give you 10 grand. You make all the art for my money." "Great." Boom. Done. The artist makes all the stuff for your game, you pay him $10,000, you guys don't talk anymore. Six months later your game's doing really well. That artist reappears and says, "Hey, give me 50 percent of all your revenue or take all of my art out of the game." The reason they can do that is because it doesn't matter that you paid them for it. All you paid them for without a contract is a license to use their stuff. You don't actually own it. So, with a license to use their stuff, that license fully revocable by the artist, and a lot of artists have now started seeing articles or talking to attorneys or realizing that they can go around and hold these game companies hostage. And they're doing it. A lot.
So it's increasingly just the past couple months been the biggest problem I've seen in increase. You know, I think it's despicable but it's something that definitely happens and it's unfortunately how the law is. The law says that unless you have an assignment clause in the contract, you don't own what you paid for. It doesn't matter if you agreed to it in an email. It has to actually be in that contract.
And it's not the way it's done usually. And, you know, there are instances where email's good enough, but you'd have to have a damn good assignment clause in the email. And the only reason I say that is because I actually have a client who wrote one, which is the funniest thing I've ever seen, but it's good enough. It was pretty crazy. But it's the only time I've seen an email be sufficient.
But not what I recommend.
Can you tell me a little bit about how Candy Crush is --
[Laughs.]
-- I guess you said "ruining the industry."
So, in my opinion, so no defamation lawsuits. [Laughs.]
Sorry. You wrote a thing about it, so I should state, yeah, it's just an opinion.
[Laughs.] So, the way defamation law works is there's two defense. It has to either be my opinion or the absolute truth I can prove and since I can't prove it I'll say "in my opinion.”
By Candy Crush I mean Candy Crush's mentality of: "Look at how much money is in games. I'm gonna make this crappy game, go in there, it's addicting enough -- usually not as addicting as Candy Crush or at least as successful, but I'm gonna sell this game and I don't care about the game industry. I don't care how much damage I do to the game industry. All I care about is how much money I can make quickly and screw everybody else." That mentality is very popular nowadays where non-gamers are saying, "Oh, look how much money is in games. I'm gonna go make this game, I'm gonna hire an artist and developer, do a stupid match-three game or whatever it is and make as much money as I can and get out."
The problem is those people then start doing things -- I mean, in some sense they're doing things properly where they're coming from other industries so they know they're supposed to trademark their game names and things like that. The downside is they're doing it completely over-reaching, where Candy Crush was trying to trademark just the word "candy" in the game space. That's ludicrous.
[Laughs.] I mean, the application was insane. They did it and they were -- "saga" quite literally is a Norse word for epic or long tale and they tried to stop Banner Saga who was a Viking game about an epic or a long tale. So, it's just -- it's the absolute disrespect for the industry, it's the absolute non-care about what harm you're doing long-term in exchange for a quick buck. And that's the real issue there.
I remember, too, didn't Bethesda try to go after Mojang --
Yeah, with Scrolls. You know, and so that --
That's a different thing, I know.
It's different and I don't want to equate the two. It's such a lawyer answer, but the difference there is so -- everyone really does know