The videogame industry has been relentlessly fighting against piracy in diverse forms for the past couple of months (Nintendo against piracy sites here; Pac-man fighting infringers here and many more). All these news added to the fact that the global game market is expected to generate € 138 billion (approx.) made us want to properly address the Intellectual Property questions in this industry.
Unlike other creative industries, video games draw on the worlds of both technology and creativity. This makes them complex works of authorship that combine multiple art forms (music, scripts, video, drawings, characters…) and human interaction while executing the game with a computer program on specific hardware. And with the current technological advances, games can be as varied as the imagination of its developers: realistic graphics, voice-overs, use of motion capture technology, music equal to film scores and original storylines. Development and marketing budgets for major game titles can often rival those of the movie industry!
Bearing that in mind, one can realize that videogames are not simple creatures, but rather the result of an amalgam of individual elements that can each be individually copyrighted (the characters of the video game, its soundtrack…) if they achieve a certain level of originality and creativity.
With such a fast-paced changing industry (virtual reality, new hardware, new distribution methods, and new monetization methods) come certain legal risks and challenges. Why? Because whenever an industry changes, it takes time for laws and regulations to catch up. This entails that regulation that was originally thought to apply thirty-year-old technology is applied to ground-breaking technologies.
Intellectual property (IP) is a vital element in the videogame industry: development contracts, employment agreements (IP ownership), distribution, advertising and pretty much every license in this industry. IP seeks to protect developers and their creative work from pirates and competitors that want to take a game work and use it without authorization and without providing compensation.
Developing a proactive IP strategy is, therefore, essential to the success of a developer’s enterprise, a challenging task in a fast-growing industry and even more challenging when facing the lack of harmonization. Find below a breakdown of the most relevant IP rights involved in this industry and what they cover.
Copyright is, probably, one of the most important IP tools for most game companies.
In a nutshell, copyright protects the expression of ideas. Now, as far as video games are concerned, copyright covers:
- Source code
- Conceptual art
- Box design
- Soundtrack and sound effects
- Script, dialogue and the storyline
Bear in mind that copyright protects the expression of ideas, not the ideas themselves. This has two actual consequences: no game ideas are protected by copyright until they are fixed into some expressive medium; similar ideas expressed in different ways are not considered copyright infringement.
“Derivative Works” are also a key component. A derivative work is a new work derived from an existing copyrighted work. What does this mean in relation to videogames? In the copyright sense, this translates as “the game company has acquired the right to make a videogame from the film”. Or this is how a production company can make a film based upon a game. For example, Doom the movie was a derivative work created from Doom the game.
A trade secret is defined as the information that may be used for business advantage and that a company keeps secret. Unlike the other IP rights, this is the only form of IP that will not be publicly disclosed.
Any idea can be a trade secret as long as:
- The information is not generally known to the public
- It confers an economic benefit to its owner
- The information is subject to reasonable efforts to maintain its secrecy
In the case of videogames, trade secret rights can extend to virtually any information that grants a business advantage, such as:
- customer lists
- notes on game development
- business contacts
- license terms
- other internal business items that are valuable to game development but not protected by the other IP tools.
A trade mark allows consumers to instantly recognize the company and its products when they see the mark. For example, the Xbox, PlayStation and Nintendo logos are immediately recognizable and consumers have certain thoughts and feelings associated with those marks.
The most common trade marks are words, symbols, graphics, or short phrases used to identify a specific company’s products. More exotic trademarks can be 3D marks, smells, sounds or colors.
What is important when protecting computer games, or any software invention for that matter, is the matter of how your game differs from what has been done before, and how this difference is achieved with technical means.
If the only difference is that the game rules provide for a new user experience then the European Patent Office will not grant a patent. We must look beyond these rules, look at how they are implemented to achieve the desired outcome. If something more has been done in addition to, or despite, the game’s rules, and it can be argued that a technical problem has been solved, then a patent application could be filed. What does this mean?
- New rules for old games are not patentable
- The technical way in which the rules are implemented might be patentable. For example, take Pokémon. The appearance of Pokémon throughout the game is currently dictated by the hours (day time or night time) and also by the “appearance probability” (some Pokémon appear very frequently, while others are rare). This specific combination and the corresponding Software were granted registration.
- Making a game easier to play could also be patentable. Take FIFA, for example. In this game, the developers created a way in which a player can identify fellow team members, their location thanks to a map on the bottom left corner of the screen. This was considered as a technical contribution going beyond the game rules and was awarded patent protection.
This is not to be considered as the rule of thumb. Patent applications undergo a case-by-case analysis and criteria might be interpreted differently.
This is just a quick summary of which IP rights apply to this growing industry. We hope it can prove useful and somehow enlightening for some of our readers. Remember that if you are creating your videogame, you should resort to the services of a specialized IP lawyer to make sure you are properly equipped to confront the final boss #competitors.