Game On: Protecting the Intellectual Property of Video Games and Apps

The cornerstone of the video game industry is intellectual property in the form of the code and technology that produces unique gaming products and apps. Today more and more video games and apps are being produced and marketed by individuals hoping to hit it big with traditional or online gamers or iPhone and Android users. This scenario has created challenges for developers and distributors of video games and apps with enforcing intellectual property rights under legal protections like copyrights, trademarks and patents.

Gaming Industry Appeal

The video game industry produces, on average, $47 billion in gross revenue each year from its vast gaming products that appeal to users of all ages and demographics. What makes the products that video game companies sell unique is the intellectual property behind them, such as the code, artwork and sound of games or apps. The challenges that many companies and developers face today, however, is the volume of games and apps being produced, which makes investigating and enforcing intellectual property violations difficult.

Copyrights are the most common types of legal protections that guard the artistic and creative expression that goes into video game code, artwork and sound. Copyrights help prevent the duplication of things like game characters, but general elements needed to show a particular activity, like golfing, are not copyrightable under the scenes a faire doctrine. Trademarks protect the names and logos of gaming companies and products, while patents defend against the design or utility of gaming-related technology.

Recent Gaming Case

When a video game developer recently decided to remake the famous Tetris video game into an app, they assumed the rules of the game and its functionality were not protected under copyright law. The developer relied on the scenes a faire doctrine to defend their game. The federal court judge disagreed, however, and reasoned that Tetris is protected because of the many ways it could be recreated and expressed differently. It would not be protected, though, if its functionality "is so inseparable from the underlying idea that there are no or very few other ways of expressing it," which is the case with many sports video games.

Game On

The video game industry moves quickly, sometimes faster than the laws that protect gaming products, which makes keeping up with intellectual property enforcement difficult. In addition, developers tend to move around to different gaming companies, so it is common to share ideas or code, and they do not pursue claims themselves because they typically give up their intellectual property rights to the distributing companies. If both gaming companies and developers want to continue to game on, they need to work together to legally protect their unique gaming intellectual property.

It is important to register video games, apps and other creative gaming endeavors under copyright, trademark and patent protections, or a combination of the three. Contact a local intellectual property attorney for advice before developing or distributing any new games.