Intellectual property laws are constantly evolving and differ around the globe. The complexity of our highly-connected world necessitates the study and practice of IP law in the 21st century, and the gaming industry may be the prime example of an industry that requires the expertise of IP attorneys. In 2020, the global games market generated $177.8 billion, and that number is only projected to grow over the next couple of years, with an estimate on the table that the industry will top $200 billion by 2023.1
With the popularity of the gaming industry comes IP complexity. Between patents on gaming hardware and software, trademarked products and brands appearing in the games, and user generated content, there is a lot to sort through. And then there is the value of the IP of the game itself to consider. Video games are made up of computer programs and code, audiovisual content, pictures, literary works, voiceovers, music, and much more.2 All of this requires expertise for proper IP protection. Let’s explore some of the areas of IP that are particularly complex in gaming.
Patents and More
The gaming industry applies both patents and industrial design protection. Protection from patents applies to hardware and technical solutions. Nintendo’s D-Pad and Mass Effect’s Dialogue wheel are examples here.3 Anytime a game creator uses a system or mechanic that is unique to the industry, they will want to protect said system with a patent.
Industrial designs are also an element to consider with games. They offer protection on a game’s graphics, from characters to cover art, as well as all graphic interfaces.4 Unlike patents that protect the technical functionality of a game, industrial design protection exclusively applies to design elements, like colors, shapes, etc.
Patents become especially complex when we examine patent law in various countries. Filing in the U.S., for example, does not mean your patent is protected in another country. Since a game will likely be played in another country, however, filing an application with the International Patent Cooperation Union may be helpful if there is a need to file an international infringement.3
Trademarks (and copyrights) are an interesting element of legal protections in the gaming industry, as a game itself can be trademarked, and it can use trademarked brands within the world of the game. Trademarks extend to branding, logos, and phrases that identify an organization or source of a product.
As technology improves and a sense of realism becomes a part of certain games, like Call of Duty or Grand Theft Auto, for example, more real-world, trademarked items may appear within the world of the game. An IP dispute went to court in 2020 over the use of Humvee vehicles in Call of Duty, and it was ruled by a New York district court that the developer could indeed use the Humvee trademark under the U.S. First Amendment.2 The court applied the Rogers test that came out of a 1989 case, Rogers v. Grimaldi, which allows trademark infringement claims to be rejected if the trademark is used for creative expression and does not mislead consumers.5 In the case of Call of Duty, the use of Humvee trademarks added to the realism of the game and were considered artistic in nature.
Many games also feature Easter eggs, which are hidden pieces of content added by developers that reference other games, fictional worlds, or even real world events. Some of these items may be copyrighted, but to determine if an infringement has happened can be a complex process. Easter eggs may fall under the fair use doctrine, thus making them exempt from a copyright dispute.2 In this one specific instance in gaming, you can see how difficult it becomes to apply IP law.
Thanks to the COVID-19 pandemic, gaming is booming, with the number of gamers expected to exceed three billion by 2023.6 As the pandemic drove people indoors, social interaction that allowed for social distancing was at a premium. In addition to a boom in video conferencing software, video games became a social haven for millions.
With this socialization, many video games urge players to create their own content, which is dubbed user-generated content (UGC). This content can include fan art, modifications (mods), related stories, and more. While this type of content can build community, lawyers can easily see the headache UGC can create for IP rights. Players have to follow the end-user license agreement when using the game’s IP, and developers have to follow regulations to prevent their IP from being associated with any undesirable content created by a user breaking the terms of a service agreement.2 Thinking about how few users actually read the terms of service or end-user agreement, it is easy to see the risk involved with UGC. It is expected that more legal cases will be brought to court as UGC becomes interwoven with gaming.
Unravel IP Complexity at Cardozo School of Law
With the estimated growth of the gaming industry in the coming years, we can expect IP needs to grow and change, as well. Gain a better understanding of how IP law relates to gaming with an advanced degree focused on IP law.
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- Retrieved September 30, 2021, from newzoo.com/insights/articles/global-games-market-to-generate-175-8-billion-in-2021-despite-a-slight-decline-the-market-is-on-track-to-surpass-200-billion-in-2023/
- Retrieved September 30, 2021, from wipo.int/wipo_magazine/en/2021/02/article_0002.html
- Retrieved September 29, 2021, from gamesindustry.biz/articles/2021-02-03-how-to-protect-your-intellectual-property-in-the-games-industry
- Retrieved September 29, 2021, from kashishworld.com/blog/intellectual-property-and-video-games/
- Retrieved September 30, 2021, from law.justia.com/cases/federal/district-courts/FSupp/695/112/2345732/
- Retrieved September 30, 2021, from newzoo.com/insights/trend-reports/newzoo-global-games-market-report-2020-light-version/