alk into a firm where video game industry lawyers practice and, depending on your opinion, the goings-on can look either awfully fun or awfully nerdy. Yes, the attorneys can (and do) sometimes bill clients for playing games. Sean Kane ’98, who is widely acknowledged as a pioneer in the field, can plug into any conference room at his firm and play. In his office, he has framed remnants of Atari games dug up from the New Mexico desert—for years, legend had it that the company buried them after going bankrupt, which proved to be true.

In the early 2000s, pre-smartphone, Kane spotted a legal future in the industry and even taught a (packed) course on video game law at Fordham. Today, the kid who once put countless quarters into the James Bond–inspired arcade game Spy Hunter is the interactive entertainment co-chair at Frankfurt Kurnit Klein & Selz, where he advises more than 100 clients on games like Fortnite, among others. “When I’d first go to legal events, people would say, ‘Being a video game lawyer is a thing?!’” But the response from the video game industry was great. “They see the value of lawyers who understand the industry.”

Meanwhile, in the Los Angeles office of Mitchell Silberberg & Knupp, a triangular building with 60-degree angles, one angle is home to a gaming lounge with multiple consoles. “Like most office buildings, the walls are a little thin so you can’t go mad with the cheering,” notes Eleanor Lackman ’03, an entertainment and IP litigator who, among other things, deals with the legal side of e-sports—video games played competitively for live audiences, often by professionals. “You can’t work in entertainment and sports without knowing e-sports,” she notes. “No way. Not these days.”

If you still think video games are for kids in basement rec rooms, think again. While teens and young men are certainly among Fortnite’s fans, a 2019 report from the Entertainment Software Association found that 46 percent of gamers are women—and that the average gamer is 33 years old. Today’s games are sophisticated and sometimes staggeringly beautiful; bona fide cultural phenomena played online by millions. Forget Twitter, Instagram, and Facebook. In 2018, the technology site the Verge dubbed Fortnite the year’s “most important social network.”

Sean Kane ’98: “We’re looking at experiences that never even existed five years ago and trying to say what law should apply.”

In 2011, the Supreme Court confirmed that video games have the same First Amendment rights as other works of art, but that was just the tip of the iceberg in terms of the legal matters at play. There are trademark disputes and copyright infringements and right of publicity cases involving sports stars’ tattoos. There are privacy issues (these games handle a lot of data) and gambling laws, as well as online bullying. And there has been an enormous amount of publicity about sexual harassment and predation, often affecting minors. Lawsuits are also brewing about whether the games have failed to disclose that they may be as “addictive as cocaine,” as a recent Montreal court filing put it.

With their hundreds of hours of story lines, dizzying detail, and morphing technology, video games are about pushing boundaries (and not just of the legal variety). Yet getting lawyers to talk about the legal issues involved with video games can be tricky because of pending litigation. And to make matters more complicated, even attorneys who practice what you might call “video game law” sometimes argue that there is no such thing. Instead, there’s intellectual property law, contract law, trademark law, and various other areas of law as applied to the industry. “There aren’t a ton of laws that are specific to games,” says Chris Reid ’09, the in-house counsel for mobile games publisher Tilting Point. “It’s more about what the implications of existing laws are for the kind of business that games do.”

A 2019 report from the Entertainment Software Association found that 46% of gamers are women— and that the average gamer is 33 years old.

One thing lawyers will say is that practicing in this arena means coming up with novel applications of IP law. That often means convincing judges that the games have the same rights as any other creative content, like TV or movies. “Interestingly enough, with some of the earliest games, like Pac-Man and Space Invaders, the copyright office wouldn’t copyright them,” says Kane. “Basically, they were being a little snobby and were saying that there was no art there—that the games weren’t worth copyrighting. Some of the games released in the ’70s did not receive a copyright until the ’80s and ’90s.”

These days, many games are, indeed, works of art, as intricate and slick and complex as movies, except gamers are in the leading roles, driving in a storm through the fictional city of Los Santos (in Grand Theft Auto V), where neon signs reflect in puddles and on the rain-slicked hoods of gamers’ cars. Then there’s Red Dead Redemption 2, set in an imagined version of the American West in the year 1899, where more than 40 species of bird life are so accurately depicted that a birder wrote a paean to the game on the Audubon Society website.

Back when Fortnite and Grand Theft Auto V weren’t even glints in some developer’s eye, Sean Kane spent his free time playing many hours of Pitfall!, Pac-Man, Frogger, Space Invaders, and Defender. “I played them in the arcades and at home,” he says. That passion for video games ended up shaping Kane’s law career, though he started out acting and singing in musical theater. When he gave up the stage for law school, Kane says he saw it as a way to continue performing, since the best litigators are also storytellers.

Kane is passionate about not only games but also movies and old-fashioned ink-on-paper books.

As a content lover, IP felt like a natural choice. “I went to a lot of conferences on technology, I started reading to see what areas were really burgeoning, and I realized that there was almost nobody focusing on video games,” says Kane.

After six years at a firm, and noticing the rise of multiplayer online games in particular, he decided to hang out a shingle as a video game lawyer, correctly predicting that with people playing against one another, and potentially creating or earning items that could then be traded or sold to other players, legal issues would no doubt arise. “I saw the technology they were starting to use to make these games sort of interoperative and collaborative so that individuals could play from all over the place,” says Kane. “I was like, Ah, okay, now that you’re not just playing against a machine but you’re playing against another person or dozens of people, there’s going to be some really interesting legal issues coming out of it.”

One legal issue involves loot boxes, digital goody bags that offer players features like special character outfits and powerful weapons, for which gamers pay with cold hard cash (or, more likely, with a saved credit card). Does this activity count as gambling? Given that the hundreds of territories where games are played have different rules about gambling, as do all 50 states, the answer is unclear. “Every day you get a different regulator or someone trying to pass a law in this area, so you really have to be paying attention,” says Kane. No wonder he has a list of Google Alerts longer than a terms of service contract.

When advising clients on loot-box issues, Kane draws from laws that include money laundering, gambling, banking, and money transmitting. Some questions he finds himself posing: How do we make sure this virtual currency isn’t e-money? (E-money has its own requirements.) How do we design it in such a way that it isn’t a gift card? (Gift cards don’t need to be physical, and they’re also different in every state that has them.) And you don’t want to, say, have your virtual currency escheat—or revert—to the state if you have not spent it within three years. “It’s an area where we, to the best of our ability, make analogies to existing laws,” says Kane. “That way, if a regulator ever came down and said, ‘Why did you do it this way?’ we could say, ‘Well, we limited the amount someone could buy because money laundering has requirements of how much money someone can spend. And we limited the ways virtual currency could be spent and made it spendable only in our game because gift card laws don’t need to be regulated if they’re available at only one store.”

Then there’s the booming e-sports market, and when we say booming, we mean booming. Riot Games, publisher of League of Legends, a fantasy-inspired multiplayer battle game, says 99.6 million people watched last year’s Summoner’s Cup finals—more than the 98.2 million who watched the 2019 Super Bowl. Increasingly, e-sports are looking like legacy sports, with slickly produced tournaments, extensive advertising, and major corporate sponsors. For attorneys, that means endorsement deals to button up. (Louis Vuitton recently signed a deal to make a trophy case for the Summoner’s Cup world championship, just as it does for the French Open.) There are logos to brand and protect, employment contracts to draw up for talent, and even collective bargaining for the newly formed Fortnite Professional Players Association. E-sports also brings ever-shifting permissions challenges, because of the use of third-party content. The game companies own the rights to any public performance of their games (and the terms of service prohibit people from using them for commercial purposes). “A lot of rules exist in this ecosphere that you wouldn’t see in a traditional sport,” says Kane.

There are also various regulatory issues to deal with: A 2017 article in the Fordham Law Review, titled “You Must Construct Additional Pylons,” analyzed the unique challenges of e-sports governance. It is also quite possibly the first law journal article whose author’s note includes a thank-you to “my FIERCE guildmates for cultivating a lifelong love of video games.”

A recent Netflix shareholder letter said Fortnite was more of a threat to its business than HBO.

E-sports will also likely face some of the less savory issues currently dogging legacy sports, including the health, safety, and welfare of minors (this year’s Fortnite World Cup champion was 16 years old ); the use of performance-enhancing drugs (e.g., Ritalin); and sexual harassment. “As e-sports becomes more mainstream, there’s pressure to ensure that these players are not engaging in illegal activities,” says Lackman. “There are morals clauses that are going to be in contracts; many deals have them already. E-sports competitors and e-sports teams will have to think about themselves in the same way other sports players and teams do, on every level. They are celebrities and brands now, and there is no turning back.”

Diversity is also an issue in the industry, one that has gotten more attention in recent years. Kane, for one, believes that representation of women and minorities in the gaming industry has room for improvement. “While most game companies are looking to increase diversity, the usual lament is that they are having a difficult time finding qualified and diverse people,” he says. According to Kane, the indie world of video games is making the most progress, both in terms of more diverse types of games and the people who work for those companies. “I believe everyone is hopeful that this trend will continue and create a whole new generation of diversity that will bleed into industry leaders,” says Kane, who is also one of the co-founders of the eight-year-old Video Game Bar Association.

But even Kane can’t predict what will happen further down the road because no one knows quite what video game developers might come up with. “Lawyers don’t like to say, ‘I don’t know, I have to do some research,’ but you have to,” says Kane. “We’re not looking at 16th-century Dutch tulip merchants and a business model they came up with 300 years ago, along with the three centuries of law that have been built upon that. We get to create law, and that’s really exciting.”