Virginia Tech Massacre: The Game - What can be done?

Coverage at:
Destructoid
Kotaku
Joystiq
Game Politics (Parts I, II, III)

Much like Columbine, the Virginia Tech Massacre has already seen its fair share of ties to the game industry in the media (even if they are completely fabricated). And, like Columbine, a small developer has decided to attempt to capitalize on the tragedy with a flash game (in this case, a very poorly constructed flash game). The reaction is generally one of disgust, and with good cause. Pouring salt in the wounds of so many families is not a way to make fast friends, nor is demanding blood money to remove the game from your website. However, I don't wish to tackle this issue on the moral level or the ethical level as other sites have. I would like to take this on from the legal standpoint, even if it does serve as another departure from my typical transactional law commentary.

Before I begin, I want to once again re-iterate that this is not advice to anyone who may be in a position to bring suit, and that anyone in that position needs to seek counsel to proceed.

There are two particular legal actions that come to mind that may convince, or force, the author of this flash game to abandon his creation.


Infliction of Emotional Distress

There are two causes of action for the "infliction of emotional distress" that exist in many (but not all) states as common law actions. These are intentional and negligent infliction of emotional distress. The former is more widely accepted than the latter, and the latter would not apply in this situation. Intentional infliction, however, may be applicable.

Intentional infliction of emotional distress has 4 primary elements:
1. An intentional or wreckless act
2. Extreme or Outrageous conduct
3. Causation
4. Actual Emotional Distress
Taking them one by one, creating and releasing this game on the internet was clearly intentional, and creating a game that makes a real life (not fictional) brutal mass murderer a "hero" at the expense of the victims of the real crime is likely outrageous. If any of the victims' family members were to see the game and suffer actual harm, such as a heart attack or prolonged headaches, as a result of seeing the game, then there could be a case made for intentional infliction of emotional distress.

Right of Publicity

I must admit, I could not bring myself to play through all of that game. It was just such a colossal waste of time and so poorly designed. There are two possible right of publicity claims that I can think of, however, I am not sure how much the second may apply because I'm not sure of the game's content. Both claims, however, face some serious hurdles.

First, Cho's family might have a claim. The difficulty is that many jurisdictions will not protect these rights after death. Moreover, there are many arguments that could be made about the content and its news or artistic value.

Second, if any victim is correctly named in the game, that family would have a more compelling case for protecting the right of publicity, but still with the same post-death protection hurdle to overcome.

Under either case, the general elements of misappropriation are present. The author has taken these people's names, and is profiting (or at least trying to profit) from their use. While it is not the typical case (i.e. false celebrity endorsement), it does seem to satisfy the elements.

Conclusion

While I am typically a proponent of free speech, insulting the dead is one of the areas where I believe a little common decency goes a long way. If this game were not simply awful and presented in such a manner, or if the author had not turned the situation into what amounts to a ransom note for human decency, then many people would likely not have even paid attention. But, rather than take one of these approaches, the author abandoned most any claim of class or artistic merit in favor of pure shock value. While I'm not sure if any of these suits would bring any remedy, they are at least something to consider when there aren't really any alternatives (unless you consider paying the author to take down the material a viable remedy).

As a side note, I can only hope that the actions of rogue creators such as this are not used against the legitimate industry by opportunistic politicians and talking heads once again. The analysis that regulating games will somehow affect these basement developers is just completely flawed. It is analogous to thinking that a regulation of the content of print media (books, magazines, newspapers) will somehow regulate the content of online message boards, text messages, and notes left on the refrigerator at home. It only serves to demonstrate a complete lack of understanding of the media and the industry.