The video game market is an enigmatic one, existing somewhere between the realms of art, sport, and software. This can make it hard to figure out where to look when it comes to legal matters. At the same time, video games stand to benefit particularly from intellectual property protections. Here’s a guide to the basics.
What is IP Law?
Intellectual property (IP) law is a system of rights, ownership, and licensing for intangible goods and services. Intangibles are naturally more complicated to regulate than physical property, and oftentimes protracted legal battles ensue to determine if something was actually stolen or not.
In order to understand how IP law applies to video games, it’s important to get familiar with the four kinds of intellectual property protection. Each applies to a different kind of non-physical concept and functions differently in the powers it grants the owner.
Most people have heard of copyrights and know generally how they work. A copyright can be applied to any creative work of art, like poetry, music, graphic design, and much more. It enables the owner to seek legal action against anyone using their work or part of their work without permission.
Trademarks are another IP law category that sounds familiar. Trademarks cover the elements that give a company brand identity and make it recognizable, such as logos or jingles. Trademarks are necessary whenever a business engages in interstate commerce, which nowadays applies to nearly all companies given online sales.
We’ll come back to the other two categories, patents, and trade secrets, later. For now, let’s see where video games come in.
Video Game Copyrights
It should now come as no surprise that video games can be regulated by copyright.
Much of what makes video games unique and enjoyable is their plot and artistic design. These fall under the domain of copyright and can be licensed for money, or simply held exclusively.
According to J.D. Houvener a Philadelphia patent attorney:
Video game characters, worlds, outfit looks, and soundtracks can all be copyrighted. Given the prevalence of video games that are constantly being produced, it can be important to stand out and offer unique visuals, story, and music.”
The lines can sometimes be hazy when it comes to what plotline or character design is similar enough to constitute copyright infringement, but it’s an important first step to take either way. Getting protected early can only help you in the long term.
Trade secrets are potentially the broadest and confusing category of intellectual property. If you’re looking to protect sensitive business information, a trade secret is a way to go.
Trade secrets can be secret recipes, production techniques, even supplier lists. Anything that gives a company an edge in the market and provides a benefit by staying hidden may be eligible for trade secret protection.
Coding for a video game, or any other secret ways of achieving the final product, can be a trade secret. While this kind of intellectual property protection doesn’t ensure that another company comes up with the same process on their own, it does make it illegal for anyone to use the information they obtained from your company’s secrets forever (or until it is declassified as secret).
Patents Video Games
Patents, on the other hand, don’t keep inventions a secret but do grant a temporary monopoly on the development and use of them. Patents must be novel, non-obvious, and eligible under USPTO rules (more information on how to get a patent here).
If copyrights cover most of the plot, art, and music of a video game, what’s left for patents to cover?
This is where it gets tricky. Since video games nominally serve the same purpose of entertainment, a utility patent (function-focused) will probably not work out. However, a design patent might be in the realm of possibility.
A kind of gameplay mechanic that is unique enough may have a chance of being patentable, as in the previous cases of Monopoly and Magic: The Gathering. However, a recent supreme court decision has potentially severe repercussions in defining gameplay mechanics as non-abstract enough to be eligible for patenting. The first step to seeing if a game is eligible for patenting is conducting a patent search.
Intellectual property law is an inherently tricky field, and when combined with the fusion of technology and creativity that is video game design, that becomes doubly true.
But basic guidelines about copyright, patenting, and trade secrets are all crucial for companies to be aware of. We’ve covered the basics in this article; anyone looking to patent or copyright anything from their own video game ventures should seek out an intellectual property attorney to plan their next move.