Brianna Howard ’16 on “How to Level Up in the Growing World of Video Game Law”

Brianna Howard ’16 is an associate at Nixon Peabody LLP in the firm’s Commercial Litigation practice group, primarily focusing on intellectual property issues. She is a part of the Virtual Reality and Augmented Reality Association and recently joined the Young Lawyer Editorial Board of The American Lawyer. Brianna was featured in a Q&A interview with Forbes, and co-authored articles for Forbes and VentureBeat on the legal issues facing gaming, online streaming, and virtual reality.

At UC Hastings, this former ASUCH member and Executive Editor of Women’s Law Journal eyed a career in tax and corporate finance. However, her fellow students’ obsession with Pokémon GO and a UC Hastings Moot Court competition on copyright and entertainment law piqued her interest in pursuing a career in intellectual property law.

Below, Brianna discusses her experience at UC Hastings and how she went from not being allowed to play video games as a child to becoming a key player of Nixon Peabody’s esports Task Force.

How did you get involved in video game law?

Interestingly enough, before law school I had never played a video game. I wasn’t allowed to. So, instead I spent time at my friends’ houses just watching them play. I was a true spectator obsessing over the experience. When I was in law school, the game Pokémon GO came out and my fellow law students, who were usually dedicated to studying and classes, spent a lot of their free time on this augmented reality app. It was so fascinating.

The game introduced me to the world of augmented reality, virtual reality, and video games. I started to educate myself on virtual reality, and I saw that it was really taking shape in every industry – from fashion websites tor furniture applications.

Around that same time, I shifted by focus in law school from tax to intellectual property law after taking First Place at the Cardozo BMI Entertainment Moot Court competition. That year’s problem derived from a real case where the defendants allegedly copied Harry Potter books and turned them into a movie.

So, Harry Potter guided you towards IP?

It wasn’t necessarily that specific problem, but something did happened as I was prepping for the competition. I was reading through all of those cases on copyright law and just began to see the future of my legal career reveal itself. The subject matter was so intriguing that I even reached out to the UC Hastings expert Professor Ben Depoorter. I became obsessed over just how much copyright law affects the industries that touch our lives on a daily basis.

When I started practicing law at Nixon Peabody, a few of my colleagues launched an esports Task Force. They invited me to a League of Legends esports college championship and it really demonstrated just how big the esports industry was becoming. There were so many people involved in the competition and participants were actually getting scholarships to play video games. I was taken aback as I observed firsthand the interest in watching people play competitive video games, so much so that it is becoming a billion-dollar industry, if it is not there already.

All of my experiences just kind of came together. So, when the opportunity to practice intellectual property alongside video game law became available at my firm, I took it and ran with it. Because of the numerous legal issues for gamers and developers, there is a huge opportunity for lawyers in this field.

What are some of the legal issues faced by video game developers and gamers?I mainly focus on intellectual property, copyright law in particular, and how it is implemented in virtual reality and overlapped with video game law. As the Copyright Office has stated time and time again, there’s no protection of an idea of itself, only the expression of ideas. So, once a game has been made public, nothing in copyright law prevents other developers from developing a similar game with similar principles. However, the way those ideas are expressed through particular game feature, and the underlying software code of that game, are things to consider when seeking protection of one’s intellectual property.

There are also patent issues, which can be amplified when virtual reality technology is implemented in video games. Just last year alone, the amount of patent applications in VR has increased to over thirty thousand applications. Now, when you add esports into the mix, there are even more patents needed when it comes to algorithms and how VR is put into practice.

Esports is developing at such a fast pace that many of those involved in the industry don’t necessarily know what’s protected, and what’s already been copyrighted or patented by someone else. Lawyers in the IP space working with the gaming industry have to help make sure that owners, developers, and players are going through the right channels to make sure whatever is being developed is ultimately protected and focused on providing gamers with the best experience. That is one of the many efforts of the Nixon Peabody esports Task Force.

As an attorney, how do you stay ahead of the curve, when it’s such an expansive and fast-growing industry?

It’s interesting because the law hasn’t really caught on to the complexities of esports or VR. The issues range from copyright or patent law to labor issues and even immigration issues as most of these competitions are international.

You really have to be proactive in anticipating and preparing for potential issues. Here at my firm, we increasingly look at the laws on the books, look at the gaps, and kind of feel out where the market is going.

There may not be absolute clarity on the law, but the cases that have been coming out of certain district courts are informative and instructive as to how courts are interpreting the laws. Part of staying ahead of the game is by reading those cases, setting up alerts on video game laws, and reading news on these topics every morning. I actually learned to do this at UC Hastings from my environmental law Professor David Takacs. To be ahead of an industry, you have to be immersed in it from the moment you wake up. It’s about reading everything you can about it, talking to people at events, and always striving for a better understanding of what the issues are. When you’re a young lawyer like I am, people are really interested and open to talking about what they are doing. All you have to do is ask.

So would you advise a present UC Hastings student interested in a particular field to immerse themselves in it?

That part is crucial. I would even discuss the topic with non-lawyers as much as possible because it does get kind of tiring to be surrounded by lawyers all day. You get a great perspective about an industry from others that are in the industry in a non-legal capacity.

I also think you have to find what interests you, not what people think you should be interested in. That’s what I believe will make a more fulfilling career. When I tell my friends that I am working in video game law, they look at me like, “You never played video games, how are you doing this?” The truth is that there are things that may interest you in a particular field that you never knew about. Don’t be afraid to explore and take ownership over your efforts to develop your practice once you’ve found your niche.

Do you have a favorite video game?

Oh gosh. My favorite video game to watch, back in the day, was Call of Duty, but you could have also found me at arcades playing Mortal Kombat. After watching the League of Legends college championship, I downloaded it and I started to play…and often. I finally understand the obsession.