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He’s in the game

Professional Profile
|Written By Vawn Himmelsbach
He’s in the game
Electronic Arts Canada senior counsel Brian Dartnell

Video games allow children and adults alike to be superstar athletes, soldiers of fortune, or great warriors of lore. 

It may seem like all fun and games, but imagine the legal implications of having a hockey game featuring the Pittsburgh Penguins’ Sidney Crosby, wearing his Rbk SC87 equipment line, and firing pucks at Detroit Red Wings’ goalie Chris Osgood’s Brian’s DX2 pads in a re-creation of the NHL’s 2009 Stanley Cup finals.

NHL 2010 game maker Electronic Arts makes the claim “if it’s in the game, it’s in the game.” For EA Canada senior counsel Brian Dartnell that means very real legal work for the virtual athletes and equipment of the beloved sports franchise. The former labour and employment litigator with Gowling Lafleur Henderson LLP in Vancouver got into the game with EA Canada in 2005 overseeing Fight Night, Need for Speed, and Mass Effect, just three of the 50 games the company produces.

 “That background doesn’t necessarily lend itself very well to transferring into a corporate role,” he says. Today, Dartnell oversees the delivery of legal services at the company’s six Canadian production studios spread across British Columbia, Alberta, Quebec, and Ontario. With 2,600 employees in Canada and 8,000 worldwide, EA develops and produces video games for Sony PlayStation 2, PlayStation 3, and PSP; Microsoft Xbox 360; and Nintendo Wii and DS. EA Canada is home to the world’s largest motion-capture facility and develops several of EA’s sports franchises, including FIFA Soccer, NBA Live, NHL, EA SPORTS Active, and Fight Night.

EA Black Box, located in its Burnaby, B.C., studio, is known for its racing franchise, Need for Speed, which has sold more than 100 million units since its inception. Edmonton-based BioWare, acquired by EA in January 2008, delivers critically acclaimed story-driven games, such as Mass Effect and Dragon Age: Origins. EA Montreal builds game franchises for next-generation hardware technology, such as Army of Two for PS3, and develops titles for mobile phones and the iPhone platform.

“Typically people think of EA as a technology company,” says Dartnell. “We think of ourselves as an entertainment company, but we’re involved in high tech in a big way and because of that the pace of change is staggering. Every time new consoles come out, we’re reinventing ourselves to make games for those new consoles, or we’re reinventing ourselves for digital distribution as opposed to [distribution through] retailers.”

Dartnell’s role involves advising internal clients, such as the information technology, finance, real estate, facilities, and procurement groups, and supports human resources — from employment to human rights to privacy to immigration. He’s responsible for sports league and athlete endorsement agreements, third-party product development agreements, content licence agreements, and marketing and promotional agreements tied to the distribution of a game.

EA puts a different athlete on the cover of NHL each year, for example, so relationships must be in place to license from the NHL Players’ Association, and from equipment manufacturers whose products appear in the game. When making the game itself, technology is used that’s licensed from other third parties.

When people talk about video game law, most of the time they’re actually talking about technology licensing or IP-related  issues. “That’s stuff we do every single day in a very big way,” says Dartnell. “We license significant content for our games and we also have outbound licensing deals. We’re constantly working through issues that arise in the digital distribution of our goods.”

Dartnell oversees the Canadian team of two other lawyers, a paralegal, an immigration specialist, and an administrative assistant. They are supported by a larger legal team at the company’s corporate headquarters in Redwood Shores, Calif. “We’re a very closely aligned legal group worldwide, but particularly [in] North America we work together daily.”

The games are divided up among the lawyers. On more complicated matters, or if they’re engaging in any kind of litigation, the legal team will turn to outside counsel — typically firms specializing in certain areas. For employment matters EA Canada works with Harris & Co. LLP. “We go out and find the best lawyer in the area, which means we’ll work with a wide variety of law firms. We also have some long-standing relationships, like Heenan Blaikie [LLP] in Montreal.”

Digital distribution is an emerging market changing the business — from consumer demand to the location of servers. “There’s a potentially limitless number of new things that arise once you decide you’re not going to sell a packaged good and distribute via the Internet or even via console. We have pretty much the entire gamut of IP-related issues, from licensing to piracy.”

That means there’s no “typical” day for Dartnell, even less so than when he was in private practice. The biggest challenge of moving in-house has been the need to understand a perfect legal environment probably won’t exist. “You need to be comfortable assessing and balancing risk and advising on what you can live with and what you can’t,” says Dartnell. “At the end of the day we have to make something that people are going to want to buy and we have to do that in a profitable way, so you have to accept some risk, but you don’t want to be foolish about what you do.”

He also had to get used to being a generalist again, after having established a speciality in private practice — he no longer does litigation in his role at EA Canada. “I have to be comfortable with not being a specialist in lots of areas where I’m giving advice,” he says. “I think that’s true for a lot of in-house counsel — you move from a comfort zone to a less well-known space.”

The trade-off for Dartnell has been worth it. He gets to work with highly intelligent, high-performing people. And while he also worked with highly intelligent, high-performing people in private practice, they all essentially did the same thing he was doing. “Here we’re in a creative business, there’s a lot of creative people, and they don’t necessarily think in a linear, logical way. They’re not necessarily concerned with risk management in any way, shape or form, so to be in an environment where you get to work with those types of people, I love it.”