Product Placement in Video Games…Part 3

In part 2, I discussed commercial communication toward children and the potential impact if the communication was ideological. I was cynic about the possible success of an action from a creator if his/her work was modified by an in-game ad. But I must admit now that I am more optimist.

The Moral rights in the Copyright Act include not only the rights of paternity and rights of integrity of the creator’s work, but also the rights of association (which are part of the rights of integrity). The rights of association could be infringed if the author’s work is used in association with a product, service, cause or institution that is prejudicial to the author’s honour or reputation. Thus, an infringement might be possible in the context of a commercial communication modifying a video game. I see how an in-game advertising could fit the definition or how a main character from a video game could be associated with a product. Unless I am mistaken, I think that Snow was the only successful case in Canada that ordered an injunction to remove the modification on the artist’s sculpture pursuant a claim for moral rights infringement. The proof will have to demonstrate an objective and subjective evaluation of the prejudice (see Snow and Parole Inc. v Guérin, Éditeur Ltée). To prove the association, I suggest that more that a sole ad in the game will suffice. We will have to wait and see if one day a video game artist feels his/her honour harms by an advertisement practice.

That is the last subject I will discuss regarding product placement in video games. I was surprise how this simple subject has brought a host of legal issues. At first, I was curious about the monetization of video games which Ian Verchere, co-founder of session games (our second guest), discussed. I looked at the regulations about advertising to children to finally discussed moral rights pursuant Copyright Act. Last class we discussed EULA. We saw the clause authorising collection, utilisation and disclosure of information. This clause is an “open door” for the in-game advertising practice and collection of data to monetize game… which bring other questions notably about privacy.