(Note: None of the images in this article are taken from my own sources, for reasons which will be made obvious very shortly.)
Video games and the people responsible for creating them get accused of "crossing the line" all the time here in the US. Whether it's Infinity Ward being dragged over the infamous "No Russian" level in Call of Duty: Modern Warfare 2, or Rockstar Games being accused of every moral violation in the book over their long-running Grand Theft Auto series, the end result of such furor rarely works to the detriment of the company involved. Most gaming scandals result in nothing more than extra press for the developers, which incites curiosity in gamers, which results in more copies flying off the shelves. At worst, a game might be threatened with an "Adults Only" rating by the ESRB, which will bar it from being sold on any platform except the PC, the developers drop one or two of the more controversial elements, and the game comes out anyway. That was the way of things until a 2004 lawsuit, the fallout from which created the only video game it is absolutely, 100%, without a doubt, I-shit-you-not illegal to own in the United States.
Ladies and gentlemen, I give you both The Guy Game and my sincerest apologies.
TopHeavy Studios had a dream. A simple dream, dreamed by simple men: combine the massive monetary potential of video games with the massive mammary potential of a Girls Gone Wild DVD and collect literally all of the money. Video games crossed with nudity have been a thing since the days of the Atari 2600, so as ideas went, this wasn't a particularly new one. However, by the dawn of the 21st century, the adoption of the DVD format in gaming consoles meant photo-realistic depictions of nude women in video games were, at least in theory, a viable form of artistic expression protected by the First Amendment. Thus was born the germ of an idea -- TopHeavy 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 with one little twist: incorrect answers resulted in the losers flashing the crowd while recorded by TopHeavy's camera crew.
TopHeavy had all the bases -- except second, giggity! -- covered: participants were required to show valid identification to verify age, sign a modeling release authorizing their likenesses to appear on-camera, and fill out a form providing their name, birthdate, address, and other basic information. After a quick scan to eliminate anyone who looked too young or made their fake ID at Kinko's, applicants were partitioned off into teams and awaited their chance to appear on stage. Every girl who participated in the event also got paid a whole twenty bucks (which is, like, so many drinks, you guys!) to flash the cameras. As crazy as this sounds considering they were being recorded at the time, Top Heavy found well over a hundred young women 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, TopHeavy went back to the office and got to work. The concept was simple but workable: up to four players compete in a 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 or not. Correct answers in either category earn points, and when a girl gets the question wrong, players see a short video of her flashing the goods. Censored, at first, of course. To increase replayability, the videos start out with the naughty bits covered by a Guy Game logo. Get enough points for a particular lady though, and you'll finally see everything just as TopHeavy's cameras recorded. It was You Don't Know Jack with boobs, and should be common as dirt, but try and locate a copy today and you'll find Amazon, GameStop, and eBay act like it doesn't even exist.
Weird, right?
I mean, TopHeavy was looking to push it out on both PS2 and Xbox (Nintendo wisely took one look at it and said, "Nah, we're good..."), with a PC release coming a few months later, and pressed roughly a hundred thousand copies of the game between all three platforms. Small potatoes compared to a Call of Duty or Grand Theft Auto, but for an FMV-based trivia game from a freshman development team made for roughly $1.4 million, even a 50% sell-through rate would bring in a profit of over a million dollars.
Or at least it would have, if the most awkward conversation imaginable hadn't sent things spiraling down the toilet.
See, one of the girls filmed for The Guy Game didn't find out just how prominent her role in the game was until after it hit store shelves. And the person who broke the bad news was none other than her own brother, who somehow summoned up the testicular fortitude to admit that he:
- A) had been playing The Guy Game, and
- B) could now pick his sister's breasts out of a police line-up.
After realizing this wasn't some practical joke, the girl, identified only as "Jane Doe" for the legal proceedings, dragged TopHeavy into court.
Doe's primary complaint was violation of privacy, as she claimed she did not know the footage shot would be used in a video game with nationwide distribution. TopHeavy countered this by pointing out any idiot should realize flashing your ta-tas in public, for money, under contract, with cameras rolling, during Spring Break season, in front of a cheering crowd, on a Texas beach demolished any reasonable expectation of privacy.
Things didn't look any better for Doe after she admitted she'd been drinking prior to both signing the contract and appearing on camera, and additionally had provided false information (including her name, residence, and date of birth) on the release and modeling forms. And if this had been her only argument, it likely would have been shredded by TopHeavy's defense. Since this didn't happen, however, you can conclude there was probably a secondary consideration the courts needed to look at, and yeahhhhhhhhhhhh, about that....
"Doe" was three months away from her eighteenth birthday when she signed up for that trivia contest.
For those not versed in US law, 18 is our age limit limbo pole for how low you can go when photographing individuals in a state of undress. "Seventeen-and-three-quarters", while close, doesn't quite cut it. TopHeavy's position instantly went from, "Ha ha, this silly young woman regrets a moment of inebriated indiscretion!" to, "But, um, I mean...she didn't look seventeen...". Unsurprisingly, the courts took that argument about as well as Doe's own father would have.
Further complicating matters was TopHeavy CEO Jeff Spangenburg's testimony that, despite now knowing Doe was seventeen at the time she was filmed minus her bikini top, the company planned to continue shipping the game unless the court specifically ordered them to stop. Find me a judge anywhere who looks favorably on a defense of, "I know it's illegal, but I'm gonna do it anyway unless you explicitly say that I can't!"
I'll wait.
TopHeavy's request to vacate an injunction against sales of The Guy Game likewise went over like a loud fart in a cramped elevator, with the appellate court noting the injunction went into effect on December 20th, after roughly 85,000 of the 100,000 total copies of The Guy Game had shipped to retailers. When pressed for details on the financial impact the injunction could pose, Spangenburg replied, "It's really hard to say at this particular time." I'm no lawyer, but it seems a response to that question should be stated firmly, and consist mostly of numbers.
The end came in 2005, with every appeal from TopHeavy squashed like a spider under a math textbook. "Jane Doe" emerged victorious, TopHeavy imploded as retailers yanked the game from store shelves, and The Guy Game entered history books as the only video game in the United States that comes with its own felony conviction right in the box.