Don McGowan is an attorney who knows what he’s talking about when it comes to understanding what Microsoft might do following the Trump administration’s provocative use of the Halo IP on social media this week. He was a senior attorney at Xbox Game Studios for three years. He was also chief legal officer at The Pokémon Company for a decade – another brand recently abused by the Trump administration. McGowan, currently a partner at KUSK Law and principal at Extreme Grownup Services, has given me an insight into what Microsoft’s current thinking might be.
Quickly if you don’t know: we’re talking about The White House tweeting an AI-generated image of Trump as Halo protagonist Master Chief, and the Department of Homeland Security tweeting an AI-generated Halo image promoting ICE, which showed Halo spartan soldiers on a Warthog jeep on a Halo ring world alongside a call to destroy the Flood – a thinly veiled and deplorable reference to illegal immigrants.
Understandably, such use of the Halo IP has caused fierce backlash, including strongly worded reprimands from the original creators of the Halo series and games.
But the question has remained, all through this week, what Microsoft intends to do about it, because it hasn’t said or done anything noticeable yet. “If I were Microsoft looking at this situation I would game-out the benefits and drawbacks of making this an issue,” McGowan told me.
“One of Microsoft’s biggest customers is the US government. Think of how many Windows licenses, Azure instances, Office 365 licenses, etc. the government has. Why would Microsoft take a step that puts those at risk? Microsoft has a dedicated federal government sales team, which means if that customer goes away, so might those jobs.
“It’s always worth remembering how companies see themselves to understand what they’re trying to do,” he explained. “Microsoft is a business software company (Nintendo is a consumer electronics company and Sony is a bank). As in: The list of brands Microsoft wants most to protect probably doesn’t have Halo on it, and the customers with whom it wants to protect its reputation are institutional customers. The tail doesn’t wag the dog. This might lead to a reduced customer base for Xbox but that’s less of an existential problem than fighting with a government.”
Were this situation left to McGowan to deal with – and bear in mind it’s been 17 years since he worked at Microsoft – he told me the first thing he’d do is have someone make a call to the government and have a friendly word.
“I would have Fred Humphries, the head of [Government Affairs at Microsoft], make a call to someone friendly in the Administration and say hey, could you do us a solid and use someone else’s IP for a while? That might be challenging because the obvious substitute IP is Call of Duty and that’s theirs also, but still.”
There are already clues this might have happened in the Department of Homeland Security’s pivot to using imagery from The Lord of the Rings films instead of Halo.
“What I wouldn’t do is anything public,” McGowan added. “I might let Phil Spencer say something like ‘we wish they wouldn’t have done that’ in an unrelated interview. But that’s as far as I’d go.”
There’s also a related question of precedent here. We saw a few months ago the usually litigation-quick Pokémon Company seemingly do nothing about the egregious use of Pokémon in an ICE promotional video. McGowan told IGN recently he wouldn’t have touched this either, were he still working there, “and I’m the most trigger-happy CLO [Chief Legal Officer] I’ve ever met”, he said.
Does Microsoft’s apparent inaction here, in addition to The Pokémon Company’s apparent inaction, open the door for other parties to use these IPs as they see fit, too? Does it create an argument of some legal weight whereby someone can say ‘hey they did it worse’?
“I’m a big believer that people and companies have the right to be capricious,” McGowan told me. “Letting someone do a thing doesn’t obligate you to let everyone do that thing, and so if you see a thing you don’t have to stop it.
“Copyright isn’t trademark where there’s a legal obligation to stop people from infringing,” he explained. “You can let someone infringe your copyrights without issue, except that a future judge might not give huge damages for future infringement on account of judges are people. But letting [Customs and Border Patrol, which is part of the Department for Homeland Security] do this has no legal impact in the future.”
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