Though video games have been afforded legal protection as creative works by the Supreme Court of the United States, the philosophical proposition that video games are works of art remains in question, even when considering the contribution of expressive elements such as acting, visuals, design, stories, interaction, and music.
Current Trends in the Art Game Genre", professor Tiffany Holmes noted that a significant emerging trend within the digital art community was the development of playable video game pieces referencing or paying homage to earlier classic works like Breakout, Asteroids, Pac-Man, and Burgertime.
[8] Similarly, the United States Supreme Court ruled that video games were protected speech like other forms of art in the June 2011 decision for Brown v. Entertainment Merchants Association.
In Germany, prior to August 2018, the Unterhaltungssoftware Selbstkontrolle (USK) software ratings body enforced Strafgesetzbuch (German code) section 86a as outlined by the German government, which banned the sale of games that contained imagery of extremist groups such as Nazis; while Section 86a allowed for use of these images in artistic and scientific works, video games were not seen to fall within an artistic use.
University of St Andrews philosopher Berys Gaut considers video games to be a case of "interactive cinema".
While many video games are recognized as art for their visual imagery and storytelling, another class of games has gained attention for creating an emotional experience for the player, generally by having the user role-play as a character under a stress-inducing situation, covering topics associated with poverty, sexuality, and physical and mental illnesses.
[32] For example, Papers, Please is a game ostensibly about being a border agent checking passports and other travel documents in a fictional Eastern Bloc country, with the player-character's pay reflecting how few mistakes they made and going to feed and house their family.
Precedent began to be established for finding that video games were no more expressive than pinball, chess, board- or card-games, or organized sports, and thus could not be considered protected speech.
[35] The release of Mortal Kombat intensified debate around violence in video games, and the U.S. Congress held hearings in 1993 and 1994 criticizing the industry for lack of a ratings system.
A series of cases at federal district and circuit courts starting in 2000 which challenged these ordinances and restrictions began an alteration of precedent of the nature of expression of video games.
[35][41] The Seventh Circuit case American Amusement Machine Ass'n v. Kendrick[42] in 2001 is considered to be the most definitive basis of the new precedent set by these cases, in which Judge Richard Posner recognized that obscenity, related to sexualized content, was separate from violent content.
[35][43] Applying this reasoning, video games were treated by reviewing courts as protected works under the First Amendment, with decisions generally ruling that ordinances blocking minors from playing or purchasing them were unconstitutional.
[43] In 2011's Brown v. Entertainment Merchants Association, which was based on a similar law in California to block the sales of mature video games to minors, the United States Supreme Court ruled that games are entitled to First Amendment protection, with the majority opinion reading, "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world).
"[45][43] Emerging art forms depend upon existing communities for recognition and legitimization, even as they compete with those incumbents for ideological and material support.
[1] John Lanchester of the London Review of Books noted that even as video games become a larger market by revenues compared to films and books, the amount of attention given to video games is generally delegated to a limited set of sources and do not readily enter the "cultural discourse".
He further explained games as a type of art more akin to architecture, in which the artist creates a space for the audience to experience on their own terms, than to a non-interactive presentation as in cinema.
[50] The question rose to wide public attention in the mid-2000s when film critic Roger Ebert participated in a series of controversial debates and published colloquies.
[54][55] A year later, in response to comments from Clive Barker on the panel discussion, Ebert further noted that video games present a malleability that would otherwise ruin other forms of art.
As an example, Ebert posed the idea of a version of Romeo and Juliet that would allow for an optional happy ending.
[56] In April 2010, Ebert published an essay, dissecting a presentation made by Kellee Santiago of thatgamecompany at the 2009 Technology Entertainment Design Conference, where he again claimed that games can never be art, due to their rules and goal-based interactivity.
[61] Ebert later amended his comments in 2010, conceding that games may indeed be art in a non-traditional sense, that he had enjoyed playing Cosmology of Kyoto, and addressing some replies to his original arguments.
[62] Although Ebert did not engage with the issue again and his view remains mired in controversy, the notion that video games are ineligible to be considered fine art due to their commercial appeal and structure as choice-driven narratives has proved persuasive for many including video game luminary Brian Moriarty, who in March 2011 gave a lecture on the topic entitled An Apology For Roger Ebert.
To create art using the medium of the video game Samyn suggests that the artistic message must precede the means of its expression in the guidance of gameplay mechanics, the development of "funness" or economic considerations must cease to guide the work's creation, and the development process must embrace a model wherein a single artist-author's vision gains central primacy.