For all the furor that erupts over the release of a game that “crosses the line” in the United States, full bans are never the end result. At most you see the occasional recall (see: Grand Theft Auto: San Andreas over the unfinished “Hot Coffee” content) or the ESRB threatening an Adults Only rating to prevent it being sold on consoles (see: Manhunt 2 for extreme gratuitous violence). Some developers go the gamer’s choice route as Infinity Ward did with the infamous “No Russian” level in Call of Duty: Modern Warfare 2, letting the player decide whether or not to participate in a mass-shooting of civilians. More often though, developers let the blood, bodies, and boobs fall where they may in the name of interactive entertainment. There’s a fuss, a controversy, a few more copies of the game get sold, and we set the stage for the same thing to happen next month. Then came a 2004 lawsuit, the fallout from which created the only video game that is currently illegal to buy, sell, or even own in the United States, and bankrupted the first-time development studio behind its creation.
Top Heavy Studios had a dream. A simple dream, made by simple men: combine the massive monetary potential of video games with the massive mammary potential of a Girls Gone Wild video and collect literally all of the money everywhere. Video games crossed with nudity have been a thing since the days of the Atari 2600, so it’s not like this was a particularly recent or novel idea, but by the dawn of the 21st century, advances in graphic and video display technologies had reached the point where photo-realistic depictions of nude women in a video game format were, at least in theory, a viable form of self-expression protected by the First Amendment. Thus was born the germ of an idea–Top Heavy would send a small crew to South Padre Island, Texas during Spring Break season. Their mission: to entice as many nubile young women as possible to participate in a trivia contest where incorrect answers resulted in the losers flashing the crowd (and Top Heavy’s cameras).
Top Heavy had all the bases (except second, giggity!) covered: participants had to show ID, signed a modeling release authorizing their likenesses to appear on-camera, and filled out a form providing their name, birthdate, address, and other basic information. After a quick measure of scrutiny to eliminate anyone who looked too young, applicants who met the requirements were partitioned off into teams and awaited their chance to appear on stage. Best of all, every girl who participated in the event got paid (a whole twenty bucks, which is, like, so many drinks, you guys!) to flash the cameras. Anyone seeking proof it’s easy to find people willing to debase themselves for cash can stop right here, because Top Heavy found well over a hundred willing to strip in exchange for a portrait of Andrew Jackson.
Footage shot, releases secured, and the women all but forgotten as soon as they hopped on the plane, Top Heavy went back to the office and got to work. The concept was simple but workable: up to four players compete in the multiple-choice trivia quiz to answer the same questions asked of the girls, then further guess if the girl answering the question got it right. Correct answers in either category earn points, and when a girl got the question wrong, players see a short video of her flashing the goods. The points earned served to unlock uncensored versions of the clips. It was You Don’t Know Jack with nudity, just what the gaming world wanted. Say hello to The Guy Game, everybody.
Publisher Gathering of Developers was looking to push it out on both PS2 and Xbox, with a PC release coming a few months later, and pressed roughly a hundred thousand copies in total. Small potatoes compared with, say, God of War or Call of Duty, but for a budget-level title from a freshman development team, a six-figure sales figure was perfectly respectable. All it took was the most awkward family conversation imaginable for things to spiral down the toilet.
We’re not sure how the subject was broached, but one of the girls filmed for The Guy Game didn’t find out just how prominent her role in a nationally-distributed video game was until a few months after its release. The breaker of bad news? Her own brother, who somehow summoned up the testicular fortitude to admit to her that A) He’d been playing something called “The Guy Game“, and B) He now knew what she looked like under her clothes. Things got a lot more awkward for Top Heavy Studios when the girl, identified only as “Jane Doe” for the legal proceedings, dragged Top Heavy, Take-Two (owners of publisher Gathering of Developers), Microsoft, and Sony into court on two separate counts of being naughty.
Top Heavy laughed at the first claim, which stated her privacy had been violated and she did not know the footage shot would be used in a video game. Lawyers for Top Heavy and Take-Two adroitly pointed out the shoot took place with a prominent and easily-identified camera crew, in front of hundreds of spectators who also took pictures or recorded cell phone videos, therefore any idiot should realize flashing your breasts in public, for money, under contract, with the cameras rolling, during Spring Break season, in front of a cheering crowd, on a Texas beach demolished any reasonable expectation of ‘privacy’. Things looked worse when Doe admitted she’d been drinking prior to appearing on camera, and had provided false information (including her name, residence, and date of birth) on the release and modeling forms she signed.
The plaintiff’s second claim wasn’t dismissed so easily, given it showed she was three months away from her eighteenth birthday at the time of filming. If you heard that weird ‘needle being pulled off the record’ noise in Texas in December 2004 and didn’t know why, mystery solved. Suddenly the defense’s position went from ‘Ha ha, this silly young woman regrets her inebriated indiscretion!’ to ‘Holy shit, did we just mass-produce child pornography?’
Judges in the suit dismissed the claims against Microsoft and Sony, which is only fair; holding them liable makes as much sense as holding Dell responsible for someone using one of their PCs to get any work done around this office. Top Heavy and Take-Two weren’t so lucky as the Texas courts played Phoenix Wright with their appeals and requests to dismiss. Not surprisingly, the judges took the defendants’ argument of, “But she didn’t look seventeen, your honor…” about as well as her own dad would have. Top Heavy’s argument that an injunction would impact holiday sales of The Guy Game went over like a lead balloon too: it went into effect on December 20th, well after Top Heavy shipped its holiday stock. When pressed for details on the financial impact the injunction could pose, Top Heavy CEO Jeff Spangenburg said, “It’s really hard to say at this particular time.” I’m no lawyer, but it seems a reply to that question should be stated firmly, and consist mostly of numbers.
The end came in 2005, with every appeal from Take-Two and Top Heavy squashed like a spider under a math textbook, putting the final nail in Top Heavy Studios’ coffin. “Jane Doe” emerged victorious, Top Heavy imploded as retailers yanked the game from store shelves, and The Guy Game entered the history books as the only video game in the United States that can currently earn you a trip to prison merely for owning it. So find a better hiding place than the back of your closet, Carl–that’s where they always look first.