Freedom for Mature Content Developers and Gamers: A look into ratings reasoning and influence

By Phillip Wessels (sykosilver@gmail.com )

Retailers and console companies are censoring acceptable content in games through the Adults-Only (AO) rating. The Entertainment Software Rating Board (ESRB) assigns the AO rating on the basis of controversy rather than legality or obscenity. The controversy exists due to false perceptions that particular mature content is harmful to the judgment of only a fraction of the audience. Developers and gamers are subject to the consequences of the censorship and prevented from sharing and experiencing a reasonable artistically-driven experience.

Founded by the Entertainment Software Association (ESA) in 1994, the ESRB is a self-regulated non-profit organization responsible for assigning computer and video games with content ratings. Their mission is to empower consumers (particularly parents) with the ability to make informed decisions while purchasing games.1 ESRB ratings are comprised of two parts: ratings symbols suggesting age-appropriateness and content descriptors which may be of particular concern or provide reasoning for the rating. Ratings include Early Childhood (EC), Everyone (E), Everyone 10+ (E10+), Teen (T), Mature (M), and Adults-Only (AO).2 There are many different content descriptors. The ratings system is voluntary, but virtually all games carried by retailers in the U.S. and Canada have been rated by the ESRB, most retailers have policies to not carry games which have not been rated by the ESRB, and console companies (including Sony, Microsoft, and Nintendo) do not allow games lacking an ESRB rating to be published on their consoles.3 From this information it can be inferred that for the mass-market success of a game, it must be rated by the ESRB.

As previously stated, retailers do not carry AO-rated games and console companies do not allow them to be published for their consoles.4 Traditionally the AO rating has been associated with pornographic content, however, a problem lies in that there is actually not really a strong distinction between the M and AO ratings. There is only a 1-year difference between the suggested age-appropriateness for the ratings-- 17 years of age for M-rated games, and 18 years of age for AO-rated games. Many games have been hampered by the AO rating due to non-pornographic content. Manhunt 2, developed for an M rating, was assigned the AO rating on the basis of its violent content.4 Age of Conan developer Funcom is forced to stifle its team's creativity and how much they hold by the Conan universe to avoid the AO rating, though their desired content is only erotic and not pornographic.5 Manhunt 2 publisher Take-Two Interactive's chairman Strauss Zelnick, has stated in an interview his perspective on the AO rating.6

"The AO rating was not intended when it was developed to mean a non-rating. That wasn’t the point. If you can’t market it because you aren’t allowed by the licensors or the retailers won’t carry it, then the rating doesn’t have any meaning. Clearly one has to discuss what its purpose is."

-Strauss Zelnick, Take-Two Interactive Chairman

Without any particular distinction between M and AO, additional cases of games crossing the fuzzy line are bound to arise. Under the current system developers of mass-market games will either be forced to censor the content of their games or meet financial ruin.

Some believe the distinction between the M and AO rating to be to protect children. Zelnick argues that Rockstar, developer of Manhunt 2, targets its games for adults--their average consumer age is 33 years, and that they should be able to market that product to its intended audience.6 Further supporting this is that only 31% of video game players are minors, while 25% of gamers are over 50 years of age, and the average gamer age is 33 years.7 In addition, content such as violence in video games has been found to only influence already aggressive children with existing problems towards a violent nature while most kids are unaffected.8 In addition, there is no epidemic of youth violence in America and youth crime rates have actually gone down in recent years. In 2004, the murder rate hit a new 40-year low; the most popular video game of 2004 was Grand Theft Auto: San Andreas.9 Children are only a minority of the market and content like violence clearly has no effect, yet game developers are being forced to take these false perceptions about violence and children into consideration when producing content for games, which aren't even intended for younger audiences in the first place.

Others believe the distinction between M and AO to be purely a legal one. Noting that state law dictates in most cases what is and isn't appropriate for children, typically it is only pornography that is illegal. However, there is more content assigned the AO rating than just pornography, including violence and erotica. While public indecency laws exist surrounding nudity, these do not apply in the privacy of the home and even then video games can be argued to be an artistic medium. Unfortunately, the line between erotica and pornography is not very clear, but pornography is usually considered obscene while erotica is not. The Miller test is used to decide whether content is obscene and therefor pornography and illegal for the viewing of minors.10

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

-Chief Justice Warren Burger, Miller v. California, 413 U.S. 15, 24 (1972).

Pornographic content meets all of these criteria, while sexual content that does not is what can be considered erotic. Nudity, for example, may appeal to the prurient (perverted) interest, but does not depict sexual content and can have literary or artistic value; it does not meet all three criteria so it is merely erotica and not pornography. Other content can be assessed the same way for obscenity. The Miller test could also possibly be adapted for assessing violent content. From reviewing the Miller test it can be concluded that there exists no legal reason for content that is not obscene being grouped with obscene content in the AO rating.

Defining content as obscene can get tricky in some situations, particularly on whether the content has artistic value. Whole games are the result of creative endeavors and therefore art, in combination with technical science.11 Specific content is more difficult to analyze as having artist value or merely being excessive. This decision can be based off of how much content meets aesthetic universals.12
  1. Expertise or virtuosity -  The manufacture of the art object or execution of the artistic performance usually requires the exercise of a specialized skill.
  2. Non-utilitarian pleasure - ...the art object is viewed as a source of pleasure in itself, rather than as a practical tool or source of knowledge.
  3. Style - Art objects and performances, including fictional or poetic narratives, are made in recognizable styles, according to rules of form and composition.
  4. Criticism - There exists some kind of indigenous critical language of judgment and appreciation, simple or elaborate, that is applied to arts.
  5. Imitation - In widely varying degrees of naturalism, art objects, including sculptures, paintings, and oral narratives, represent or imitate real and imaginary experience of the world.
  6. Special focus - Works of art and artistic performances are frequently bracketed off from ordinary life, made a special and dramatic focus of experience.
  7. Imagination - ...the experience of art is an imaginative experience for both producers and audiences.
Of course, there are examples of works of art that are exceptions to some of these universals, therefor they are not completely definitive of art aesthetics. However, if content meets most of the universals, it is probably safe to assume it has artistic value, and therefor does not qualify as obscene. Analysts must take care, though, as even pornography can be considered art according to these universals; exceptions may have to be set for content that meets the other two qualifiers of the Miller test (such as the depiction of sexual intercourse). In addition, there exists the aestheticization of violence as well 13, meaning further exceptions may need to be set for specific examples of extreme violence and gore.

In conclusion, the ESRB must review its ratings system and take into consideration the purpose of the AO rating, its implications, the distinction between it and the M rating, as well as what content is to be associated with the rating for what reasons. Aesthetics, obscenity, and legality should be the deciding factors in what restrictions by retailers and console companies should be placed on the marketing of games. Games intended for mature gamers should not be hampered from reaching their audience due to the baseless protection of a minority of the market. Censorship should not hurt the sharing of a reasonable imaginative experience by developers and gamers.

References:
  1. About ESRB. Retrieved November 11, 2007 from ESRB
  2. Game Ratings & Descriptor Guide. Retrieved November 11, 2007 from ESRB
  3. Frequently Asked Questions. Retrieved November 11, 2007 from ESRB
  4. Graft, Kris (2007, July 9). Take-Two Criticizes AO Rating. Retrieved November 11, 2007 from Next Generation
  5. Ogden, Gavin (2006, September 25). Age of Conan - Hyborian Adventures. Retrieved November 11, 2007 from CVG
  6. Takahashi, Dean (2007, August 1). An interview with Take-Tow Interactive Chairman... Retrieved November 11, 2007 from A+E Interactive
  7. Video Games & Violence. Retrieved February 18, 2009 from ECA
  8. Most kids 'unaffected' by violent games. (2007, April 1). Retrieved November 11, 2007 from The Sydney Morning Herald
  9. Ferris, Duke (2005, October 19). CAUTION: Children at Play - The Truth About Violent Youth And Video Games. Retrieved November 11, 2007 from Game Revolution
  10. Three Prong Obscenity Test. Retrieved November 11, 2007
  11. Anti-Censorship: Key Points. Retrieved November 11, 2007 from IGDA
  12. Dutton, Denis (2002). Aesthetic Universals. Retrieved November 11, 2007
  13. Morales, Xavier (2003, October 16). Kill Bill: Beauty and violence. Retrieved November 11, 2007 from The Record