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The Lawbringer: Tying up Etsy, Annual Pass loose ends

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Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Mathew McCurley takes you through the world running parallel to the games we love and enjoy, full of rules, regulations, and esoteroic topics that slip through the cracks.

Resolution is something we rarely get in life. People are cagey, issues are weird, and tying up loose ends is a business of winding down all its own. There are two fairly loose ends still waving in the wind out there that I had some more opinions on and thought you would be interested in the share. If you guys have any topics from The Lawbringer that you'd like to see reexamined, updated, or even be told the other side of, let me know. We can work something out, you and me.

The first issue that comes up in my email all the time is from people selling items on Etsy that are based on or inspired by artwork, characters, or designs from World of Warcraft. It's its own cottage industry, as the secondary and tertiary markets open up around the stadium that is Warcraft. People making WoW goods often want to sell them and have many questions in that vein. What is right? What is wrong? Maybe I can shed a little light on the subject.
Good afternoon:

Love your column; not sure if you've answered anything regarding this type of thing before, but here it goes.

I always wanted to open a restaurant/diner, regardless of the intense amount of work this endeavour would take, what if any would the legal ramifications of naming the restaurant after an inn from the World of Warcraft Universe or the items on the menu? Of course they wouldn't have the actual ingredients but it'd would be fun to have Raptor Eggs as a breakfast item for example.

Was there not a column about people selling WoW inspired items via sites like Etsy and the like? Would it be similar?

Would the laws vary if one were in a different country? Canada for example?

If it has been answered before a link to the previous article would be greatly appreciated.

Thanks!!!


Thanks for the email! I touched on the Etsy issue back in September 2011, but I didn't go into too much depth because, really, going into depth with this issue is dangerous. Not like, you know, atomic bomb dangerous -- but the last thing I want to do is point young, ambitious artists in the wrong direction, because every case is unique. However, I can give you the right way to think about what you're selling.

The biggest issues are consumer confusion, profit, and intent. If you're profiting off of the work of others, be it inspired by or a flat-out copy, watch out. When you involve money in anything is when the switches start getting thrown. Amount matters, though, so Etsy sales and art stuff probably won't register the number's we're talking about, but that's obviously not the only factor.

I talk a lot about consumer confusion on The Lawbringer because it's the most important problem as well as the easiest problem to solve: Be better at communicating. The problems arise when we take for granted the goodwill that is so prevalent in society that takes a leap of faith and trust to begin to foster. We are fickle, suspicious, and downright hostile people sometimes, and adding confusion into the mix just makes people frustrated.

If your items could reasonably be traced back to Blizzard, as in the belief that Blizzard made them and not you, you probably want to scale back on that. Selling WoW-inspired hearthstone earrings is one thing, because the evocative shape of the hearthstone, while copyrighted art, is still enough of a general shape and pattern that, aesthetically, it's a tougher call than a picture of Thrall.

Intent is also a big deal. Are you a manufacturer in Idaho looking to make knockoff WoW figures and StarCraft hoodies? You are most likely going to have lawyers contacting you. Are you an Etsy store operator who makes WoW ceramic coasters with class icons on them? Less of an issue, until Blizzard starts selling coasters. By the way, if you make ceramic WoW coasters, link me to them because I really want one. Also, a Horde ashtray. Whoa, where did all my money just go?

Bottom line: Don't steal Blizzard's stuff. When in doubt, email Blizzard and ask permission. And keep being creative. I know it's not the greatest thing in the world to say, but make the stuff regardless, even if you don't sell it. Make it anyway. Blizzard is flattered and enjoys it more than you know. Just don't mass produce Thrall figures, please.

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The one inevitable person

Our second email comes from Gimorth, and admittedly, I held off on answering until a few weeks after the main outcry over the Annual Pass issue died down. While stoking that flame is fun (and occasionally informative), we're getting to the point in the beta invite process where it just doesn't matter anymore. Blizzard rolled out almost a million beta invites to ramshackle test servers in a little under a month. Does anyone else in the MMO space even attempt boneheaded cliff jumps like that? I feel like I'm watching Blizzard mid-jump over 12 flaming buses, throwing the horns, hoping to nail the landing on a giant ramp labeled MISTS OF PANDARIA AND INDUSTRY LEADER METAPHOR.

Gimorth's question is what happens to the inevitable one guy who doesn't get his beta access?
Hi Mat,

I know you've covered some of the finer points of the Annual Pass and the fluidity of the terms, but I was wondering about what a player's rights would be if s/he was simply never invited into the Beta.

We've seen the first waves go out with the general understanding that those with the longest-standing accounts and the earliest adoption of the Annual Pass would get the first nod. I've been playing the game since January 2005 and singed up for the Annual Pass on day one (my agreement end on 10/21/2012) and I have not yet received an invite. Now, I have no doubt that I will get an invite and I am sure it will be soon. However, this doesn't stop me from thinking "what if?"

Informed by the handful of times that I've sat in a restaurant waiting area for far longer than originally promised only to find out that my party was actually forgotten, I have to imagine that it's possible for Blizzard to make a mistake- to overlook someone in the program entirely. Let's assume it is the case- let's assume that 1 Annual Pass subscriber gets forgotten and is never invited into the beta. Does this person have any recourse? What might s/he be able to expect as restitution?

Thanks,
Gimorth - Uldum, US
Thanks for the email, Gimorth. Hopefully by now you're in the Mists of Pandaria beta, considering I was saving your email for later when I wanted to talk about this exact subject. I edited down your email just a bit to save some space, but the essence of the question is still there: What happens when that one guy gets forgotten, as he most definitely will be? What is he entitled to? Let's explore.

The very basic issue is that a party, in this case Blizzard, did not hold to the terms of a deal that was made. We don't like this in society because, as you might have guessed, we prefer a bit of order with our chaos entree. As it turns out, one of the best ways to get people to pay up on their contracts, deals, and debts is to set up a system of recompense and recourse. Blizzard is a fairly large company with a reputation for good customer service in its industry. Chances are, Blizzard did not actively pursue a course of action that singled out this one Annual Pass holder and forbade him entry into the beta.

In essence, Blizzard would not have performed its entire duty, and this left-out Annual Pass subscriber would be entitled to whatever his loss was worth. We like "making people whole" in this system. If a guy sideswipes your car and you take him to court, the usual outcome is the cost of repairs plus whatever is deemed necessary for restitution. For this Annual Subscriber to have his restitution, Blizzard would have to either provide something of equivalent value and settle on new terms with regards to whatever this subscriber wants or make some sort of compensatory payment to make the subscriber whole again.

That then begs the question of what beta access is worth, which is a tricky subject. We don't like assigning value to things if we are Blizzard, because value begets worth, and worth begets trade, and trade begets regulation, and nobody wants regulation over your internet fake dollars; not just yet.

So what is beta access worth? Nothing. Really. It's worth nothing. I can sign up for the opt-in beta invite process for free, even without a subscription or license to any Blizzard game on my account. Beta access is a free privilege, and the Annual Pass turned it into a free right for a million people. Do you see the disconnect when you ascribe worth and value to something that has no inherent monetary value, but jam-packed with sentimental value and emotional connection?

Problem solved. Blizzard offers the very first beta invite to the one guy who got left out, makes a huge, funny deal out of it, the kid gets his picture on the site, and Blizzard turns a stupid and completely avoidable PR mistake into a teachable moment for the industry regarding large-scale beta access ... and Mists of Pandaria breaks more records at release.

This column is for entertainment only; if you need legal advice, contact your lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wowinsider.com.

Filed under: Analysis / Opinion, The Lawbringer

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