Marketing a game is becoming ever more important as platforms get flooded with new games daily. Developers, especially those with smaller marketing budgets, have to get increasingly creative with how they market their games, lest they get pushed to the back of the search results.
With great creativity comes great responsibility. There are an infinite number of ways to get a game seen by potential players, and each “crazy marketing idea” can carry legal risk. Here are seven simple questions to ask (with not-so-simple answers) that can help inform and manage risk when concocting the marketing plan for a game.
Question 1: Can we say it?
In general, marketing claims should be accurate and not misleading. This applies to anything from trailers, store pages, roadmaps and feature descriptions to release messaging and social posts. In the US, the Federal Trade Commission (the “FTC”) requires advertising claims to be truthful, non-deceptive and supported when appropriate. Similarly, the ESRB’s advertising principles and guidelines state that advertising should accurately reflect the nature and content of the game and should not mislead consumers about its true character.
While developers likely do not intend to be misleading, it can happen by accident when the marketing starts before development is finished. From the time a game is first announced to the date it is released to the public, so much can change: features can be overhauled, core systems can get cut, even the release date itself can be moved. That’s why before any claim goes live, the team should understand exactly where the game is at and what it can support and communicate that to the audience.
Question 2: Can we show it?
A typical game trailer likely contains all or some of the following elements: footage of the game, some music, some text somewhere, and logos. Depending on the type of game, the trailer can also feature third-party brands, voice performances, or licensed characters.
Everything that goes into a trailer (or “first look,” or gameplay demo) should be cleared for potential rights issues before it’s released. The more you include, the more risk you take on, and some clearance considerations are easy to forget: font licensing, music licensing, and voice actor permissions, which often means going back through your contracts to confirm you actually secured the rights you need. Before publishing a trailer, promotional graphic, or even something as simple as a game screenshot, studios should know exactly what appears in the frame and confirm that they’ve obtained the necessary rights and approvals to cover that use.
Question 3: Can they say it?
And by “they” I mean the influencers, streamers and creators who are part of the marketing plan for the game. Endorsement issues can arise when someone else is doing the talking about the game.
If an influencer, streamer or creator receives money or something else of value connected to promoting a game, that relationship needs to be disclosed. “Something else of value” can include free products, early access, travel, or even a free game key. The FTC treats a material connection broadly and specifically notes that it’s not just money that has to exchange hands–free or discounted products and other perks can count too.
Game developers and studios working with creators should think about what claims creators are permitted to make, what disclosures are expected of the creator and the studio, and whether the promotional content requires review before hitting “post.”
Question 4: Can we use it?
What happens when a fan of the game posts the coolest fan art ever? Or when someone makes a hilarious viral video about the game and tags the studio, and the community team immediately wants to repost it?
This is a complicated area for intellectual property that involves multiple potential rightsholder issues. Sometimes, the answer can depend on how the content came to be. For example, a piece of fan art entered into a contest under official rules from the studio may be treated differently from something a studio happens to find on social media.
Copyright, publicity rights, fan art policies, platform terms and rights permissions can all come into play when handling fan art, memes, testimonials, screenshots, mods and other user-generated content.
Question 5: Can we give it away?
One of the best ways to get more eyeballs on content is to encourage people to share it. Share it with their friends, share it on their stories: the more shares, the better. But people don’t always want to share things for free. Sometimes they need “something in it for them”: in come giveaways and contests.
Giveaways and contests can be great marketing tools for a game, but they need more structure than a simple “repost to win” to be legally compliant. (They’re also legally distinct; read our blog post here to understand the differences.) If not structured properly, these promotions can violate anti-gambling laws. They can also raise issues involving privacy (particularly if minors can enter), copyright in user-submitted entries, platform promotion rules (some platforms prohibit requiring users to share a post to enter), FTC disclosure requirements for incentivized posts, and the right to use winners’ names and likenesses.
Studios will almost always need official rules, both to comply with applicable law and to protect themselves from liability. Depending on the structure, they may also need a free method of entry, eligibility restrictions, prize disclosures, and platform-specific terms. Larger promotions can trigger state registration and bonding requirements, and winners may have tax reporting obligations for prizes above certain values.
Given how many issues these promotions can raise, checking in with an attorney who knows promotions law can help studios avoid regulatory penalties and costly disputes down the road.
Question 6: Can we talk to them?
“Target audience” is a term that should be familiar to game developers who are starting to think about who, when, where and how to market their game. Age ratings are one part of this conversation: for example, the ESRB’s advertising principles and guidelines state that games rated Teen, Mature or Adults Only must not specifically target audiences for whom the product is not rated as appropriate.
Privacy adds on another sticky layer that must be handled carefully. Without getting too into the weeds of privacy law (because that is its own can of worms and you can read more about it on our blog post here), it’s critical to have a good grasp of what information the game collects, which tools are collecting it, who that information is shared with and for what purpose.
Age ratings, truth-in-advertising standards, privacy laws and rules involving children (such as COPPA) can all affect where ads may appear, who they may target and what data may be collected through cookies, pixels and other marketing tools.
Question 7: Can we sell it?
Players need to understand what they are buying because these days, there are so many different, complicated and convoluted configurations of how a game is packaged and sold. Games can now come with base editions, deluxe editions, super crazy wow collector’s editions, DLC, season passes, battle passes, virtual currency, subscriptions, preorders, early access bundles…and the list goes on!
This can create confusion, to say the least.
Offerings need to be clear about what is included and whether any limitations apply. The more complicated offerings become, the more important clear communication and messaging are.
Final Thoughts
Hopefully this article has given game developers and studios a sense of what they should be thinking about when marketing a game before, during, and after launch. It’s not an exhaustive list, but it’s a start. Odin Law & Media works with game developers, publishers and other industry teams on advertising, IP, creator partnerships, promotions, privacy and other issues that come up when devising creative marketing strategies for games.
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