IP Rights SIG/Overview of IP in Video Games
International Game Developers Association
Overview of Intellectual Property in Video Games
All games, regardless of their type, content, country of origin, target platform or supporting media, comprise some combination of intellectual property ("IP") rights, including copyrights, trademarks, patents, trade secrets, and rights of publicity, usually owned by many different parties. The assets in a game protected by IP rights generally fall into the basic categories of code, art, audio, and design. Within each category, some assets are created "from scratch" while others are licensed from others, whether for reasons of efficiency or publicity.
Copyrights in Games
Copyright is probably the best-known IP right to the game industry at large. Any original work of authorship that has been fixed in a tangible medium (including computer media) is automatically protected by copyright without registration in the United States: source, object and machine code, artwork, design docs, budgets, business plans, some user interface and program structure, sequence and organization, compilations of material, music, characters and story, but excluding: ideas; methods, procedures and other IP covered by patents; and scene a faire, which means scenes customary to a particular genre. The owner of a copyright has the exclusive right to copy, distribute, publicly perform and prepare derivative works based on the copyrighted work (See 17 USC 106 of the Copyright Act).
At its most basic level, copyright in a finished game protects the code embedded on the medium, e.g. the DVD-ROM, the cartridge or even the file made available for download. Entertainment software piracy is typically fought by bringing claims of copyright infringement, because it is often much easier to prove than patent or trademark infringement and also carries high statutory monetary penalties (often carrying the threat of greater reward than a claim for breach of the EULA or other contract).
The test for copyright infringement is whether the defendant had access to the copyrighted work, and whether the defendant's infringing work demonstrates substantial similarity to the copyrighted work. Access is often inferred if the copyrighted work was publicly available (which should also suggest that the often touted cheap method of gaining copyright protection by mailing yourself the work is in practice rather unimportant, because the fact that you created the work *first* is not technically what matters), and therefore the degree of similarity, as well as whether the defendant has any available defenses (such as fair use) will be critical points in any copyright litigation.
Examples of Copyrights in Finished Games
- The code encompassing all of the features of the game (graphical user interface, music, speech, etc.) attracts copyright protection as a literary work, because it is the expression in written, albeit coded form of these features.
- All of the original design documents, either as computer files or sketches or print-outs also attract copyright protection as literary works, because they are expressed in writing.
- Concept artwork may separately attract copyright protection as artistic works - but note that there is no requirement that they be "artistic" in the "pleasing to the eye" sense of the word, merely that they be graphic works (or sculpture, photograph or collage).
- Motion capture data may attract copyright protection as a dramatic work, since a dramatic work is generally understood to include a "work of dance or mime".
- The plot or script may also attract separate copyright protection as a dramatic or literary work, and the characters may also be protected as part of a dramatic or literary work.
- The musical components of the game, whether relating to cut scenes or in-game audio, will attract separate copyright protection as musical works; note that only the printed or encoded musical score attracts this type of copyright protection, since the lyrics are protected as a literary work.
- Generally, any type of sound sample, or reproducible combination of sound samples, attracts copyright protection as a sound recording.
- Video or movie elements will be protected as audiovisual works.
By way of example, let's consider a simple example with a classic game known to all, Tetris. At its most basic, the game inventor Alexey Pajitnov would originally own the copyright in:
- The game code as a literary work;
- The display as an audiovisual work; and
- The tunes as a musical work and a sound recording.
If, however, at least one of the tunes was written and recorded by a friend, then this friend would own the copyright in the musical work BUT Mr Pajitnov would still own the copyright in the code that generates the tune, although possibly infringing his friend's right to control derivative works.
Similarly, if the patterns on the bricks in the display were taken from abstract drawings by yet another friend, then again this other friend would own the copyright in the patterns BUT Mr Pajitnov would still own the copyright in the code and graphics that generate those bricks, although infringing his friend's copyright.
Mr Pajitnov would therefore seek a license with both his friends to legally include their respective original works of authorship in his game.
Today's games comprise 3D worlds full of avatars, realistic models and textures, dialogue, music, lyrics, cut-scenes, etc. Potentially many more copyright licenses need to be addressed in the production of a contemporary game.
Trademarks in Games
The first and most obvious use of trademarks in games are the names and logos associated with the game, the publisher, and developer. Commonly, publishers and developers will have registered their company name and/or logo and/or even signature sound sample as trademarks, whereby these are traditionally included within the game in splash screens during the game's introduction, possibly, further within the graphical user interface of the game itself, and on the box and advertisements.
The specific characters, places and weapons will also be the subject of a trademark, in some cases these are licensed from other entertainment properties.
Beyond the trademarks associated with the game as a product, there is frequently inclusion of trademarks or servicemarks not directly related to the game itself or its developers or publishers, by way of textures implemented onto in-game billboards, models, racing cars etc. This can be done for the purpose of heightening the immersion or accuracy portrayed by the game, or as advertising for those real-life sponsors. An example would be the livery of a rally car during the 2003 season, complete with real-life sponsors' names and decals plastered all over, all of which are expectedly real-life registered trademarks.
Whereas the use of real-life registered trademarks in games can be a desirable state of affairs, in that it lends a degree of reality portrayal, there is a danger that some trademark owners either will not want to license their brand for reproduction in a game or -worse- will not actually have a right to do so. In addition, if permission is obtained, the trademark owners will require their mark to be accurately portrayed.
Pushing this comment to its logical extreme, owners of registered trademarks or servicemarks may even insist upon the inclusion of the international legal notice and - if this insistence is only notified late in the development cycle â€“ this may generate supplemental, unnecessary overheads.
Types of Trademarks Found in Finished Games
- Game name and logo
- Company name and logo
- Technology name
- Platform and manufacturer name
- Distinctive sounds or colours
- Name and character designs of characters
- Slogans of original IP
- Unique weapons
- Other valuable marks.
Readers with an inquisitive mind may want to consult a judgment by Justice Jacob (UK, Court of Appeal) on 26/06/02 against THQ following a trademark dispute between the Fund (formerly World Wildlife Fund) and the World Wrestling Federation, whereby THQ's continued marketing of its World Wrestling Federation licensed games in the UK with the newly disallowed WWF logo would amount to contempt of court because of the logo's presence on-screen, whether as a splashscreen or as an arena-billboard texture!
This example makes the point that even a licensor may encounter trademark issues that can spill over retroactively into a game. While this example could not have been anticipated by the game developer, care should always be taken about trademark and/or servicemark inclusion in screens, textures or any other portion of the game.
Patents in Games
Patents are the least-known IPR to the game industry and usually held as the most expensive and frequently irrelevant IPR. They certainly are the most controversial. It may come as a surprise to the industry, however, that software patents have been granted for a lot longer than attention has been devoted to the subject both in the US and in European game communities, and that a growing proportion of those are very relevant to technology used for modern game application, be it in the fields of scene rendering, networking, user interfaces, animation and algorithms to speed up any of these.
It is comparably harder to determine which patented technology is routinely incorporated in games but, by way of example, any title making use of semi-transparent menus or multiple frame buffering or distributing portions of the game world across networks, could be potentially infringing on one or more patents; the list goes on, interminably. Whether the patent assignee decides to challenge the use made of the technology protected therein depends entirely upon what the assignee has to gain from asserting its existence and validity.
Patents last for about 20 years, depending upon the jurisdiction. Many once-lucrative patents covering base computing technologies such as side-scrolling or use of interchangeable ROM cartridges have lapsed into the public domain. Nonetheless, 20 years is a long time in game development, and some technology or algorithm developed 5 years ago for which patents were granted only last year may remain valid and useable for the next 10 to 15 years. In lean times or for an assignee developer on the acquisition trail, enforceable patents that are infringed present significant opportunities.
Types of Patents Found in Finished Games
Areas of a game that could involve patents include:
- Applied algorithms
- Display presentation
- Menu arrangement
- Editing functions
- Control functions
- User interface features
- Compiling techniques
- Program languages
- Translation methods
- Formulae to control program execution or process data
- Many other areas
Controversy tends to arise when patents sometimes issue on inventions that seem obvious to those more involved in the industry in question, or when patent holders sometimes attempt to enforce patents in scenarios to which they do not apply. But sometimes, valid patents issue and the claim of infringement is valid.
U.S. Patent No. 4,662,635, Video Game With Playback of Live Events, covers the use of "separable action events performed by living beings which remain as originally recorded when played back" (in other words, pre-recorded live action sequences) in a specific type of video game.
According to public press releases and articles in Wired Magazine, the legal representative of the patent holder sent a certified letter to Scott Miller (CEO, Apogee Software Ltd.) in August of 1997 demanding that Apogee "immediately cease and desist from further manufacture, sale and use of such animated video games" including Duke Nukem 3D.
Mr Miller was obviously distressed, and suggested that the patent should not have been granted and that the game industry fight to have the patent overturned. Duke Nukem 3D spawned several sequels, which are still being manufactured and sold.
Did the patent apply, or didn't it?
Some would argue that U.S. Patent No. 4,662,635 applies only to games in which the user selects which branch of a story to follow, causing a VCR or DVD to advance to the corresponding scene. Others would argue that it applies to any pre-recorded live performance in a video game. You can examine the patent yourself at http://www.uspto.gov. Pay particular attention to the section labeled "Claims," as it is the section that matters most in Court.
Whether the patent applied to Duke Nukem 3D or not, the claim of infringement created a substantial business distraction for Apogee. Regardless of the perceived validity, receiving a "cease and desist" letter of this kind is a sure sign you need the services of a patent lawyer.
Trade Secrets in Games
Trade Secret would apply when developers do not release their game and asset source code to the public, and take measures to prevent disclosure of this source code to both the public and competitors. This does not apply to open source games or those games where the source code and graphics are easily viewable (for example, on a CD as part of a "mod kit").
Trade Secret protection acknowledges the right of a business owner or corporation to keep business information secret for purposes of supporting the business or maintaining a competitive advantage.
Types of Trade Secrets Found in Finished Games
Trade secrets may include:
- Source code
- Object code
- Machine code
- Any concepts, ideas, methods, processes, or documents related to the creation of software or other game assets, including characters, storylines, drawings, including tools and techniques
- Business plans and methods
- Marketing plans
- Customer lists
- Many others
Trade Secret Example:
The Quake 2 game engine from id software has been licensed privately to dozens of companies, and has also been released to the open source community under the GNU Public License (GPL). Raven Software then licensed the Quake 2 engine privately to create the game Heretic II, and modified the engine to provide an intelligent 3rd person camera. Subsequently, Raven Software released some of the source code to Heretic II for use by the "mod" community, but did not release the source code for the 3rd person camera or other engine modifications as they were considered trade secrets.