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Can I Sue A Video Game Creator or Company?

Couple Sitting on a Couch Playing Video Games

Yes, under certain circumstances. You may have a dispute relating to the purchase or use of a game, such as a bad install or a problem with in-game gameplay. Unless you are a minor, you are typically bound by the contractual dispute resolution process in the end user license agreement (EULA).

That process takes place out of court, first informally, then if your dispute is unresolved, through arbitration. Your recovery is generally limited to the cost of the game or, if it's an online game, the amount you spent on it over the previous 12 months.

However, your dispute may not relate to the use or play of a game. It could arise in virtually any other context. In such cases, you are not bound by a EULA and, depending on the specific facts, would be able to bring your dispute in court.

Video Gaming Is a Huge Industry

Video gaming has become one of the nation's pastimes. The Entertainment Software Association (ESA) represents the video game industry. They say that as of 2021, about 227 million people in the United States play video games.

Most players, about 80%, are over the age of 18, and about half are female. We play alone, and we play together, both in-person and online. Approximately 45% of gaming is done on mobile devices like smartphones, 32% is done on game consoles (such as the Sony PlayStation, the Microsoft Xbox, and the Nintendo Switch), and about 23% is done on PCs.

In fact, gaming has become the most popular form of entertainment in the world. As of 2019, the gaming sector was worth more than $145 billion globally, and this figure continues to grow. By comparison, movies only made up about $42.5 billion and music a little more than $20 billion.

Video Games Have Been Around Longer Than You Think

You may be surprised to learn that the first video game wasn't “The Elder Scrolls V: Skyrim" (by Bethesda), “Pac-Man" (by Namco), or even “Pong" (by Atari).

It was actually invented by a physicist, William Higinbotham, working with technician Robert Dvorak, in October 1958. They called their forerunner of the tennis game, “Tennis for Two."

But video games have evolved and taken off from there. The following is a list of video game franchises that have sold at least 100 million copies and who they were made by:

  • Mario (Nintendo)
  • Tetris (Soviet game designer Alexey Pajitnov)
  • Call of Duty (Activision)
  • Super Mario (Nintendo)
  • Pokemon (Nintendo and others)
  • Grand Theft Auto (Rockstar Games)
  • FIFA sports games (Electronic Arts Inc.)
  • Minecraft (Mojang Studios, since bought by Microsoft)
  • Wii (Nintendo)
  • Lego (Warner Brothers Interactive Entertainment)
  • The Sims (Maxis and EA)
  • Final Fantasy (Square Enix)
  • Mario Kart (Nintendo)
  • Assassin's Creed (Ubisoft)
  • Need for Speed (EA)
  • Sonic the Hedgehog (Sega)
  • Madden NFL football games (EA Sports)
  • The Legend of Zelda (Nintendo)
  • Resident Evil (Capcom)
  • Star Wars (Disney and EA)
  • NBA 2K (Sega)
  • Wii Sports games (Nintendo)
  • Pro Evolution Soccer (Konami)

Video Game Creators and Companies Get in Disputes Like Any Businesses

Like any industry, video game companies and their employees, such as game developers, can get into any number of types of disputes with people. Sometimes a customer has a bad experience with a game. And sometimes a dispute arises in a different context.

Here we discuss both. First, we go over in some detail disputes involving gaming experience problems. Second, we address a few other contexts in which lawsuits have been brought against video game creators and companies.

Disputes Involving Gameplay

Sometimes it feels inevitable. You buy a new game, download it, install it, and then? No luck. Or you're playing and the game glitches (that's why they make patches). Worse things can happen, too. Suppose your computer or console is damaged by a game and you have to replace it? What relief do you have?

The EULA

Your rights are governed by the EULA. When you install a game, download additional content (DLC), or create an online account, you need to agree to the terms of use. That forms a contract. And EULAs typically spell out a procedure you need to follow in order to resolve disputes. Unless you're a minor (see below), you don't get to just go to court.

Notify the Video Game Company

The first usual step is that you need to inform the video game company in writing about your claim. Depending on the terms of the EULA, you may be able to do this by email. If not, you need to mail a letter to the company outlining the problem you have and asking them for what you want. They have a period of time in which to respond. Most claims are resolved this way.

Binding Arbitration

If that doesn't work, the next step is arbitration. Instead of a judge, a person called an arbitrator is hired to hear both sides and decide a fair resolution for you. Often, the video game company will agree to cover the reasonable costs associated with the arbitration. Arbitration can be a complicated process and you are bound by the decision.

If you do try to file a lawsuit in court, the video game company will likely ask the judge to either dismiss your case or compel you to arbitrate your claims. If you are a minor, however, you may be able to “disaffirm" the contract. That means you would no longer be bound by the arbitration provision (or any of the provisions in the EULA) and could proceed in court.

But otherwise, you need to go to arbitration. Although arbitration can get complex, it might not be worth it to hire a lawyer. Unless you're really, really mad and the principle is at stake.

Small Claims Court

Some EULAs, however, expressly permit you to go to court. Small claims court, that is. The amount you can recover there (if you manage to get around the EULA's limitation on damages) is comparatively small, and many small claims courts do not allow you to be represented by a lawyer. So even if you can go to court, you might not think it's worth it to hire one.

Limitation on Damages

The second obstacle is that just like arbitration, virtually all games' terms of use contain a limitation on recoverable damages. That's typically the amount you paid for the game or, for an online game, the amount you spent on it for the previous year. If you're a minor who can disaffirm the contract, you may be able to seek damages in court that exceed this limitation.

But if you're not, you're probably stuck. Going to court, even if you could get around the arbitration provision, would probably cost more than you could recover in most instances. It might not be worth it to sue.

Lawsuits Aren't Just About Gameplay

But perhaps your dispute does not involve the purchase and installation of a game. You could be a game developer who believes a game violates your intellectual property rights. You could be an employee of a gaming company and have a dispute with your boss. In other contexts like these, you are not bound by a EULA and would be able to go to court.

The types of lawsuits you might bring against a video game company are as diverse as they would be against any other business. Here are a few examples (a couple do involve in-game play).

1. Olson Twins v. Acclaim

Mary Kate and Ashley Olson sued Acclaim when they decided not to release a game based on the twins' popular television show. They claimed that by not releasing the game, Acclaim damaged their brand.

2. The “Lineage" Game Suit

A gamer sued NCSoft because she accidentally destroyed the ultra-rare Jin Myung Hwang's Conduct Sword in the game “Lineage," which was worth $28,000 on the retail market. They argued that NCSoft should have restored the item.

3. The Tattoo Case

A tattoo artist sued a game developer, claiming that a lion tattoo on the fighter Carlos Condit from the game “UFC Undisputed 3" violated his copyright.

4. The “Lineage II" Case

A gamer sued NCSoft, claiming that he suffered depression and severe emotional distress from investing over 20,000 hours playing the game between 2004 and 2009.

5. Gaming Addiction

Two minors brought a class-action lawsuit in Canada against Epic Games, the maker of the interactive online game “Fortnite," claiming that they developed a gaming addiction from excessive playing.

6. Universal v. Nintendo

Universal City Studios sued Nintendo, claiming that Nintendo's character “Donkey Kong" infringed on Universal's intellectual property rights relating to “King Kong."

7. Beiswenger v. Ubisoft

An author brought an action against Ubisoft, the maker of “Assassin's Creed," claiming that the game directly copied his book.

8. Thompson v. Sony

Families of murder victims sued Sony, the manufacturer of “Grand Theft Auto: Vice City," claiming that the game was responsible for the deaths.

9. The “Blonde Girl in the Red Bikini" Case

Lindsey Lohan sued Sony, claiming that it stole her image in creating the in-game characters Lacey Jonas and the “blonde girl in the red bikini" in “Grand Theft Auto V."

10. Sexual Harassment at Activision

The State of California brought a lawsuit against Activision Blizzard, the maker of the popular online game “World of Warcraft," for employment discrimination.

You May Have a Reason to Consult a Lawyer

As you can see, there are many reasons that might justify filing a lawsuit against a video game company. If you are out your money for a defective game, try to work out your dispute through their informal process by yourself. You are probably limited in the amount of damages you can recover anyway.

But there are many reasons why you might want to sue a video game company, a game publisher, or a development studio apart from gameplay. We have given you just a few examples.

If you are thinking about suing, consider speaking to a consumer protection lawyer in your area. They can give you advice about whether you are bound by the terms of an arbitration provision in a EULA and, if not, whether a lawsuit makes sense in your circumstances.

Next Steps

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