Intellectual Property Protection in Games

Introduction

As the online game industry grows ever profitable, so do the rewards in pirating, cloning, and infringing content from the most popular and successful games. And although the plunderers of the virtual world have become ever more savvy in the last decade, the protections offered by modern intellectual property laws can mean the difference between failure or success for a budding gaming enterprise. When so much creative energy and technical expertise goes into creating the next big game, there is no reason that game creators and innovators should not protect their intellectual property from theft and misuse.

Intellectual property protection comes in a few basic forms: copyrights, trademarks, and patents.

Copyright

Q: What aspects of my product(s) do copyrights protect?

A: In general, copyrights cover the expression of ideas. This can include the creative content of a gaming product such as in-game artwork and virtual items as well as the overall feel of the game. Copyrights also cover any source code that is produced and employed by the gaming product. Copyrights do not provide protection for general ideas or functional aspects of games.

Q: Why copyright my gaming product?

A: Although there are limitations to the protection offered by a copyright (see above), copyrighting a game can deter individuals or companies from recreating or cloning your game. In addition, if your game employs an virtual marketplace to distribute in-game goods, a copyright is an effective tool to shut down any 3rd party markets that would seek to sell those goods (e.g. BankofWoW.com, Guild-Bank.com, etc.)

Q: Doesn’t my product automatically have copyright protection?

A: While copyright protection does attach once a work is created, regardless of copyright registration, having a properly filed copyright registration affords the holder a number of legal protections.

Q: What benefits come from having a timely filed copyright registration?

A: There are two main benefits:

  1. Statutory Damages

    Proper and timely registration enables the copyright holder to collect up to $150,000 in statutory damages per copyright infringement as well as the recovery of legal costs and attorneys’ fees.

  2. Legal Presumptions

    The copyright holder is entitled, on timely and proper registration, to legal presumptions of ownership and validity when litigating your claim. These presumptions will greatly aid you in successfully defending your copyrighted product.

Without timely registration with the Copyright Office, that confer the benefits above, you may have to prove that that you have suffered actual damages as a result of the alleged copyright infringement and will likely not be able to recover attorneys’ fees.

Q: What is the timeframe for proper registration of my copyright?

A: A work which is properly registered with the Copyright Office within three months of its initial publication. A copyright may also be considered timely filed if it was registered prior to the alleged infringement.

Q: What is the Digital Millennium Copyright Act (DMCA) and how does it impact my gaming product(s)?

A: The DMCA provides a shield from liability for online service providers who host content that is uploaded by their users, content that may infringe on copyright. In order to receive this liability protection, a copyright holder must:

  • Register a DMCA agent with the Copyright Office
  • Maintain an effective DMCA policy and give public notice of that policy
  • Maintain a policy to terminate users who repeatedly infringe copyright
  • Effective and timely denial of access and/or removal of infringing content upon receiving notice

The DMCA also entitles you, as a copyright holder, to enforce your copyright protections by sending good faith notices to alleged infringers. Notices which do not comply with DMCA requirements, fail to consider fair use, or contain no good faith basis can create potential liability for the sender.

Trademarks

Q: How are trademarks used to protect my gaming product(s)?

A: As with any product, success in marketing the fruits of your creative labors can often come down to a properly chosen name. Trademarks are used to protect the names given to a product, and they can be used to thwart imitators from riding the popularity of your game’s mark to their own gain. However, the uniqueness and descriptive quality of the name you choose for your game may affect how defendable the trademark can be.

Q: What will ensure a stronger, more defendable trademark?

A: The more unique and less descriptive your trademark is, the more likely you are to prevail in defending your trademark. Games containing the common suffixes such as “Quest” or “Adventure” will be less likely to be strong marks, while arbitrary marks such as “Tetris” are easier to defend. Similarly, naming an in-game marketplace “The Item Store” may be a weaker trademark than a name which is less descriptive and more unique.

IP Protection Strategy

Q: How do I ensure that the intellectual property in my gaming products is being effectively protected?

A: As with most things, knowledge is power. Make sure that you are current and comfortable in your understanding of copyrights and trademarks concerning your products. You can accomplish this by consulting an IP expert who specializes in gaming products or a similarly specialized attorney. You don’t want to leave your creative work unprotected by basing your IP strategy on second-hand information or friendly advice.

Q: How do I choose the right attorney to protect my product(s)?

A: IP litigation is an enormous field, with various different sub-specialties and niches, and you should choose an attorney who is knowledgable not only about protecting IP for games, but also one that is familiar with your type of product. You want to make sure that if your product is the next World of Warcraft, that the attorney you select has a working knowledge of the legal facets in protecting a MMORPG. Don’t be afraid to shop around for an attorney with whom you feel comfortable, as most attorneys will provide an initial consultation for free.

Q: Now that I have my IP attorney, what should I do?

A: You and your attorney will have likely discussed the details of your business model and future plans for your game’s launch and/or expansion. Make sure to keep your attorney up to date on any big changes that might affect future protection (e.g. adding an online store for users to buy virtual items) and keep your counsel notified of any DCMA notices or possible infringement. The more communication, the better, as your attorney can help you to protect your hard work and creative products but only so long as he or she is well informed.

Patents

Q: What about patent protection for my game(s)?

A: Patents typically protect the functional aspects of the software and underlying platform for games (e.g. game engines, graphical algorithms, in-game balancing mechanics, etc.) and generally not the creative content.