Archives: February 2016

What’s a Prize? Illinois Federal Court Holds In-App Purchases for a Chance to Win Enhanced Game Play Is Not Illegal Gambling

Recently, the US District Court for the Northern District of Illinois dismissed a putative class action lawsuit claiming that the online game Castle Clash involved illegal gambling because players could make in-app purchases to win “Heroes”, “gems”, “shards” and “Honor Badges” to enhance their gaming experience.

I think I got this right: In Castle Clash, players amass armies of “Heroes” to do battle against one another. During play, the players collect “shards” – a type of virtual currency – in the game’s “dungeon” and can use these shards to obtain new Heroes from the “Hero Shop”. Also, when a player downloads the game, she is provided with some “gems” to use to make in-app “purchases” within the game to enhance play. Players can amass more gems by buying them, with prices ranging from $1.99 to $99.99. A player can collect Heroes without using her shards by purchasing gems to enter a “Talent Roll” where Heroes are awarded randomly (with a lesser chance of winning better Heroes). There are also in-app events where players with a lot of gems are awarded rare Heroes. The Heroes cannot be redeemed for cash.

To put it simply, you can pay for a better chance to win thingies that make your game play that much more thrilling. (more…)

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Did Peyton Manning Go One Pitch Too Far? (Native Advertising at the Super Bowl)

We all know Peyton Manning – he’s a professional pitcher: for Papa Johns, DirecTV, Buick, and Gatorade, among others. He’s also a professional quarterback. But did his post-Super Bowl pitches for Budweiser and Papa John’s go too far. As you may recall loyal followers of this blog, I wrote in December about the new FTC Native Advertising Rules. In particular, how the FTC was looking for transparency when an advertisement is slyly placed so as to appear to be part of the medium itself.

Take a look at Peyton’s hug with the Papa John himself and his comment about Budweiser made on national television immediately after the Bronco’s Super Bowl win. Papa John’s: https://www.youtube.com/watch?v=C2vYkY4z4Z8. Budweiser at 1:17: https://www.youtube.com/watch?v=AfNOvDZiieE (more…)

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Do I Need the Horse’s Permission to Take its Picture for a Contest?

The Guardian reported on February 2 that the owner of a horse who was in a winning contestant’s selfie claims that she should share in the contest prize because the winner did not get her permission to take her horse’s picture. Unknown if the horse gave permission, I can’t tell if he’s happy or upset in the winning photo. http://www.theguardian.com/uk-news/2016/feb/02/owner-photobomb-horse-demands-share-2000-selfie-prize “Horsefeathers” said the sponsor of the contest who awarded the prize only to the photographer.

We all know that a horse is a horse of course, of course and that a horse can’t grant permission to use its likeness in a contest. But must its owner? Sorry, Charlie, publicity rights have not been granted to animals. Although owners have tried. In New York a dog owner unsuccessfully sued a biscuit company that used Fido’s photo in an ad without the owner’s permission. In Missouri, a jury originally awarded a horse owner $5,000 for an alleged unauthorized use of the horse’s image in an ad. But the appellate court said “Whoa” and reversed.

But what if the horse took the photo? You may have seen that back in November PETA filed a lawsuit in Federal Court in California declaring Naruto the macaque the copyright owner of selfies he took from a person’s camera. http://www.peta.org/blog/monkey-selfie-case-animal-rights-focus/ As reported, the judge in the case wants to throw a monkey wrench into it and dismiss the claim.

The lesson: when having any type of contest or sweepstakes where entrants submit a photo make sure that you get rights to the photo from the photographer and all persons depicted in the photo (tiny paws have incredible difficulty holding a pen). You should include a grant of such rights in the rules and you should also require the winner to sign an assignment of rights during the validation process. Don’t monkey around with this.

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You Lost the Race, But You May Have Hit the Lottery: NY Road Runners’ Illegal Lottery Lawsuit

What is it with New York these days; it’s a boon for promotion lawyers. First, the Attorney General says daily fantasy sports are illegal gambling and now disgruntled marathoners are claiming that the organizers of the NYC Marathon run an illegal lottery. On January 21, 2016, two guys from Utah filed a lawsuit in federal court in New York for a class action against the New York Road Runners, Inc. alleging that from 2010-2015 the Road Roaders ran an illegal lottery because some potential entrants had to pay an $11 processing fee to be entered into a drawing to compete in the Marathon. (See Complaint at http://thetmca.com/files/2016/01/16-cv-00450-Document-1-3.pdf )

For those of us without “26.2” stickers in our car windows, the runners tell us that because there are only a limited number of spots, people can enter the Marathon either by donating time or money to a charity, winning a qualifying race, or by the “Lottery”. The odds of getting picked in 2015 were less than 1:5. Unfortunately, Messrs. Konopa and Clark (the plaintiffs) didn’t win. So, instead of doing what most people would do – train harder – they did what makes this country of ours so litigious great, they sued. (more…)

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