Why I Became A Games Lawyer: Q&A with Games Industry Lawyer Jennifer Kelly
In this Q&A with Tyz Law Group partner and games industry legal guru, Jennifer Kelly answers questions about why and how she became the go-to lawyer in the games industry.
Q: What inspired you to become games industry lawyer?
I am a lifelong gamer – card, board, and especially video games. I grew up playing Pong and the Atari 2600 with my older brother in the 70s and 80s. Three months into my first law job (at Irell & Manella in Los Angeles), all the brand new associates at my firm unexpectedly received a spot bonus of $300, and I ran out and bought myself a first-generation Sony PlayStation. Oh, did I love that thing. I played whenever I wasn’t billing, at the gym, or sleeping. By this point in time, which was still very early in my career, I had developed a strong interest in copyright. I felt it was a fascinating area of the law because it not only covered all the content that I cherished—music, movies, TV shows, books, games, etcetera—but was constantly evolving in light of new technologies. I did not know it was even possible then, but over a decade later I was eventually able to combine my favorite hobby with my strong interest in intellectual property law.
Q: What are some of your favorite video games and consoles?
Crash Bandicoot is one of my all-time favorite franchises. The original Crash came out in the mid-1990s and was among the first games I bought for my PlayStation. In 2017, Activision re-released Crash 1, 2 and 3 in a bundle for the PS4, which was my impetus for getting a PS4. I actually bought the bundle and the PS4 and presented them as a birthday gift for my younger son Quinn, but he wasn’t even remotely fooled. He totally called me on it —“I think this present is actually for YOU, mommy”—but we had a good laugh over it and enjoy playing Crash together. He’s only 9, but is already way better at it than I am. The other night I was attending back-to-school night via Zoom, looked over my shoulder, and saw him clearing levels I have never even seen.
Civilization Revolution is another all-time favorite. I have both the Xbox 360 and PS3 versions, and have hung onto both consoles because the game isn’t available on newer generation consoles. Civ Rev is a turn-based strategy game with a goal of world domination. There is nothing not to like about that, especially for an ultra-competitive litigator.
As for platforms, I would have to say the Atari 2600 is my favorite, because I have so many happy memories of playing all those fun games like Space Invaders, Missile Command, Pitfall and Pac-Man as a child. That being said, I am counting the minutes until the PS5 comes out and so are my husband and sons. We might need to get two of them.
Q: Was there a particular event or case that triggered your interest in games law? If so, what was compelling about it?
Back in 2008, I was working with the game company Capcom on various matters. Around that time, Capcom was threatened by the owners of the rights in the 1979 horror movie Dawn of the Dead, who claimed Capcom’s zombie-themed game Dead Rising infringed their copyrights and trademarks in the movie. I knew instantly the claims were bogus—no one can own the idea of humans battling zombies in a suburban shopping mall during a zombie apocalypse. We filed a declaratory judgment action and beat the claims on the pleadings, with prejudice. I had so much fun working on this case, researching the survival horror genre and developing legal arguments about zombies and how commonplace many of the elements in both works are within the genre. We even delivered an Xbox 360 and copies of Dead Rising and Dawn of the Dead and other zombie-themed works to the Court so that the judge could compare the works himself, which he did. I’ll bet his clerks had fun on that case! After this case, Capcom went on to release several more Dead Rising games (which has been a hugely successful franchise), and I vowed that I wanted to do more cases like that one, and set about to develop a practice focused on video games.
Q: What do you think is on the horizon for the games industry that will require complex legal counsel?
Privacy issues are more important than ever, as we have seen with some recent cases. Litigation under Illinois’s Biometric Information Privacy Act (“BIPA”) has been a hot area, with Facebook recently reaching a $650 million settlement in a BIPA class action and TikTok now currently facing a similar set of BIPA lawsuits, all relating to facial recognition/scanning technologies. As game equipment gets more intelligent and more closely associated with people's identities through biometric data, new potential areas of liability will be created. And of course, more broadly, companies potentially face stringent regulation as to how they treat customers’ data under the General Data Protection Regulation (GDPR), the Children’s Online Privacy Protection Act (“COPPA”) and, as of this year, the California Consumer Privacy Act (CCPA). Other states are following the lead of California and Illinois in considering their own privacy bills and Congress is similarly active in this area. Bottom line? These issues are not going away, and the industry has to be ready to deal with them as they come up.
Q: What do you enjoy most about the legal work you do for your games industry clients?
Having a shared passion for games is definitely a wonderful thing. Almost without exception, my clients and other attorneys (both in-house and outside) who practice in this area are gamers, and it is such fun to be able to connect with them about new games, new platforms, new technologies, and new or significant issues that game companies are facing. Even though the game industry is huge, the number of lawyers who focus their practice on this industry is actually quite small. So, it’s a relatively small and tight network, and I consider so many of the lawyers—even those who could be considered my competitors—good friends.
I also get to work on really fun matters. Not just the cases I have litigated (both plaintiff-side and defense), but a lot of other super-interesting matters that never reach litigation and are not public as a result. This ranges from working with my clients during the game development phase to clear (or not) the use of third-party IP or characters based on real persons in their games, to responding to crazy demand letters, usually where the accuser is absolutely convinced that their IP is present in my client’s game or advertising. Some of the time, they are correct (which I may or may not admit). But much of the time, it actually doesn’t matter if they are correct, because the law is on my client’s side. As in the Capcom case, copyright law does not protect ideas, so if that’s all that allegedly was copied, it’s game over. Similarly, the First Amendment can provide a strong defense for using trademarks and people’s likenesses within a game, which of course, we see all the time. And as a gamer who appreciates pop culture references within games, I applaud that.
Q: What is the most satisfying outcome in a litigation you handled for one of your clients?
Winning a dismissal in Capcom v. MKR was pretty darn satisfying, and to this day I still work with and adore Capcom. But I might have to choose the outcome in my very first cloning case, which was King v. 6waves. In 2014, I brought an action for copyright infringement in the Northern District of California, asserting infringement by 6waves of two of King’s games—Pet Rescue Saga and Farm Heroes Saga. Although the claims were very strong, it was a hard-fought case for quite some time. 6waves, which was based in Hong Kong, tried to get the case dismissed on forum non conveniens grounds, arguing they no longer had a physical presence in the U.S. and that, because the clone games had been developed in China, the case should be litigated there. As you can imagine, China is not a place you want to seek relief for copyright infringement.
Thankfully, we defeated that motion and shortly thereafter, the magistrate judge granted our motion to compel 6waves to produce a copy of the settlement agreement it had entered into in a prior cloning case filed by Spry Fox in the Western District of Washington. That was a turning point. The case settled on terms I mostly can’t disclose, except to reveal that in addition to the stipulated permanent injunction we obtained that shut down distribution of both games, my client issued a public statement noting that the settlement involved a payment by 6waves that represented “a significant amount of their revenues and our legal fees.” It was an amazing outcome, and my client was thrilled. We, of course, celebrated the victory in proper fashion.
Q: What advice would you give to someone who is considering becoming a games lawyer?
First, that you really should have a true passion for games, and should let that passion shine through and guide your words and actions. Second, make connections with others who share your passion, as that is true in virtually all aspects in life: connections matter. So get out there and get to know the other lawyers in this space. Try to work with them—or at least spend time with them. I would not have the practice that I do if I hadn’t set about to get plugged into the games lawyer world back in 2012, when I attended my very first games-focused legal conference in Seattle and gave a presentation on video game litigation. It was at that conference, right after my presentation during the cocktail hour, that I met and later went to dinner with five lawyers (all dudes, by the way) who to this day are good friends of mine. We hang out at events, we bounce ideas off each other, we refer work to each other, we collaborate on matters, and sometimes we are even adverse to each other on matters. Those relationships are absolutely priceless.
Jennifer Kelly, the “Chess Master”