Thursday, December 11, 2008
Guitar Hero: Sheppard Mullin Associate Combines Work and Play
By SHERRI M. OKAMOTO, Staff Writer
For Sheppard, Mullin, Richter & Hampton associate Shawn Foust, video games provide him with an alternate reality in which he can be a professional soccer player, rock star, or war hero after he gets home from work, but also a dynamic practice area.
The 26-year-old head of the 500-plus member firm’s video game industry group explains that video games—many of which replicate actual people, places, and events—create a “virtual world,” to which the real world’s laws still apply.
“In my mind, it’s the most interesting and fascinating legal frontier that exists today,” he says. “I mean, how do you handle an entirely separate reality?”
Take for example the recent Ninth Circuit U.S. Court of Appeals decision in E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., upheld the dismissal of a trademark infringement claim by the owners of a local strip club called the “Play Pen” against the makers of the video game “Grand Theft Auto” over a depiction of a fictional strip club called the “Pig Pen” in the game.
While the obvious areas of law implicated by video games are trademark, copyright, patent and intellectual property, Foust maintains that “it is so much more than that.”
Sheppard Mullin’s interdisciplinary team includes a core group of 20 attorneys from almost every single practice group in the firm, Foust says, including attorneys from the government contracts group—if a client say, wanted to develop a game involving military training simulations—or labor and employment attorneys—should an issue arise involving the specific laws applicable to software developers.
“The idea is to be as collaborative as possible,” he explains, suggesting that a focus on only one area of law would actually be “a disservice” to the attorneys and the video game industry itself because legal issues for the gaming industry cannot be confined to a single practice area.
Focus on Services
The video game industry “is more than the products they put out,” the attorney says. “We’re focused on providing services that actually understand the products we’re dealing with”—which is not to say the attorneys spent their billable hours sampling their clients’ wares, although Foust admits to being “a really big enthusiast” of gaming whose nightly routine involves an hour of playing on one of his five consoles at home, and the firm has a Nintendo Wii in one of its conference rooms.
“Anyone can write a good contract,” Foust says, but he maintains that is not enough. “You have to pre-empt issues before they come up,” he explains, because the clients and products in the video game industry are constantly changing.
“Gaming technology is outpacing the law,” he says. “As attorneys it’s your job to figure out how to catch the law up.”
Attorneys also need to recognize that video game clients are less risk-adverse than the average client, Foust opines. “You have to be able to hand over the steering wheel sometimes,” he says. “Your role is to keep them out of trouble…or to get them out of it when they do get into trouble.”
And even during times of economic downturn, Foust says the firm’s fledgling video game practice is thriving.
“Entertainment is historically one of the most recession-resistant practices out there,” he claims. “It appears to me the video game industry is doing just fine for itself.”
$40 Billion Industry
Indeed, spending on computer and console video game software last year reached $9.5 billion in 2007, according to the Entertainment Software Association. Industry revenues were $35.6 billion in 2007, and anticipated to approach $40 billion in 2008, an industry report released by information database IBISWorld in July stated. The company also predicted that video game industry revenues would more than double by 2013, reaching an estimated $63.2 billion.
Since the group formally launched in August, Foust says it has been bringing in business for the firm, including a start-up in China and a pro bono matter incorporating Women in Games International, a non-profit organization devoted to raising the profile of women in the gaming industry.
He says he was not aware of any other firm having an organized group devoted to gaming, but that “other firms have started to wise up” since the launch of his group.
Foust recalls that the firm “had a lot of experience” with “traditional” and “inter-active” media, but no established practice group, when he proposed the idea to Robert Beall, head of the firm’s business litigation group.
Although Foust says he was just proposing the idea to the firm, the firm placed him in charge of the group.
Foust graduated from UC Davis and the University of Virginia School of Law. He worked as a summer associate for Sheppard Mullin following his second year of law school and joined the firm last year.
Copyright 2008, Metropolitan News Company