Intellectual property protection of video games
The protection of intellectual property of video games through copyright, patents, and trademarks, shares similar issues with the copyrightability of software as a relatively new area of IP law. The video game industry itself is built on the nature of reusing game concepts from prior games to create new gameplay styles but bounded by illegally direct cloning of existing games, and has made defining intellectual property protections difficult since it is not a fixed medium.
Issues related to intellectual property protection in video games
Game creation
There are multiple aspects about video game creation that have led to different components of the software being copyrighted separately; some cannot be copyrighted at all because of their existence in the public domain or Creative Commons.Jia Wang, deputy director of the Technology Service Center at Tencent’s office in Palo Alto, California, USA, told WIPO Magazine in 2022 that "a game is both a creative and a technical product and IP protects both aspects. There's a lot of IP involved in the games we develop, from the technical mechanisms that enable and enrich the user's experience to the storyline and the heroes we create."
Common assets
There is a plethora of websites which allow creators to 'borrow' assets to implement in-game. The model of granting access and permission to use these assets differs across websites and may range from an upfront payment to a portion of profits. This is not an issue with large video game publishers, but when these self-contained companies create large and detailed worlds, most of the assets they create end up being used only once. This limits the public pool of resources/assets. Assets will often have to be recreated in order to create a new game, which is a common complaint of game developers, as it usually costs large amounts of money to create commercially viable assets and makes it difficult for smaller developers to produce games.Game engines
A game engine is a framework which a developer can use to create games. They consist of a software suite with a multitude of components, such as a rendering engine, audio engine, physics engine, and artificial intelligence. Companies create these engines for the purpose of allowing developers to create games. However, because of limitations or certain peculiarities of an engine, some designs or passive-background tasks may occur in a particular way for every game made using that engine. This particular feature is essentially the same in all games created with that engine, which takes it outside the scope of copyright. This reasoning would also apply to games made with the same engine which share source code—this would not constitute copying because the games' similarity is inherent to the tools. Large video game houses/publishers can sidestep this limitation by developing in-house engines.Producers-developers relation
Classically, publishers had the role of securing funding for a game, as well as bearing the losses and in many cases, marketing the game. These expenses were generally large and could run as high as tens of millions of dollars for AAA titles. But, with the advent of the Internet and the rise of indie culture, a new wave of financing and distribution technologies has emerged. Sites like Kickstarter and Indiegogo allow for interested consumers to directly contribute towards game development by purchasing the game in advance. Digital distributors like Steam and GOG.com removed the costly need for the manufacture and distribution of physical game discs. These innovations have allowed the industry to move away from the standard of intellectual property rights resting with the publisher instead of the developers, as "the IP rights that typically vested with publishers may now be shared with a publisher or owned by a developer or an investment vehicle".Music creators, voice actors and other contributors
Contributions that do not add directly to the code of the game would not be protected by copyrights for literary works, but these components could be covered if an audiovisual copyright is taken out. As for authorship rights, most contributors are employees and hence their work would be considered "work for hire", belonging not to them, but to their employer. Music is generally not created in-house by game developers; since third parties are hired, this may not result in a work for hire. See U.S court case CCNV v. Reid, on the principle work for hire.Gameplay
Hardware limitations
Some copyrightable elements of a game may be created due to hardware limitations. For example, the classic game Space Invaders, as originally played as an arcade game, got faster as the player killed more of the onscreen aliens, which freed up system resources.User input
User input is an essential component of video games, which are interactive media. Though this may not change the intellectual property rights in the base code of the game, some developers/publishers may restrict the rights of players to broadcast their playthrough of the game. The arguments from the other side are that the output of a game is coming in a particular way due to user input and this can reasonably give a player some restricted rights in his/her play through, also known as a Let's Play.Copyright
is a protection of intellectual property that give exclusive right to the author of a creative work. A video game may be protected as a creative work. Whether or not a work is copyrighted, and the duration of the copyright may differ between countries, and may also be limited by country specific exceptions, like the fair use doctrine in the United States.International standard
is the international treaty which provides the scope for copyright protection of video games. This protection can be drawn from the wide definition of "Literary and Artistic Work" in Article 2 of the Convention, which reads:The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
This standard treats the whole game as a singular component but does not define what would be covered by such a protection and what would be excluded. The World Intellectual Property Organization had recognized the complexity inherent in copyrighting video games, saying: "Although Article 2 of the Berne Convention provides a solid basis for eligibility for protection of video games by copyright, they are in fact complex works of authorship, potentially composed of multiple copyrighted works." WIPO has also stated in one of its reports that "there is no clear classification of video games and their protection will vary depending on each particular game and the elements that are part of it. In this sense, video games can be treated as computer programs and, thus, are classified as works of authorship; in that case, the source code for a video game is classified as a literary work. If pictorial or graphic authorship predominates, a video game may be classified as a visual arts work. Similarly, if motion picture or audiovisual authorship predominates, a video game may be classified as a motion picture/audiovisual work."
National standards
WIPO has written the following about copyright protection in different countries and jurisdictions: "For some countries, video games are predominantly computer programs, due to the specific nature of the works and their dependency on software. Whereas in other jurisdictions, the complexity of video games implies that they are given a distributive classification. Finally, few countries consider that video games are essentially audiovisual works."United States
The Copyright Act of 1976, codified at enumerates the requirements of a copyright in the US, but does not use the term. For a work to be copyrightable under the Copyright Act it must meet the threshold of originality, be fixed in a medium and the work must be perceivable and reproducible. Regarding copyrights for video games, the US Copyright office has stated that "a single registration may be made for a computer program and its screen displays... when answering the 'Type of work being registered' question on the application form, the copyright holder shall choose the type most appropriate to the predominant authorship."In other words, US law does not specify a certain protection to be given to a game. The individual registering the game, or their attorneys, must ascertain which category best protect the interests of the author/assignee.’
File:Mino-tetris-comparison.jpg|thumb|right|The Tetris Company won its case against Xio Interactive, on the basis that Xio's game Mino copied too much of the look-and-feel of Tetris.
In the United States, the underlying source code, and the game's artistic elements, including art, music, and dialog, can be protected by copyright law. However, gameplay elements of a video game are generally ineligible for copyright; gameplay concepts fall into the idea–expression distinction that had been codified in the Copyright Act of 1976, in that copyright cannot be used to protect ideas, but only the expression of those ideas. The United States Copyright Office specifically notes: "Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles." Courts also consider scènes à faire for a particular genre as uncopyrightable; games involving vampires, for example, would be expected to have elements of the vampire drinking blood and driving a stake through the vampire's heart to kill him. It is generally recognized in the video game industry that borrowing mechanics from other games is common practice and often a boon for creating new games, and their widespread use would make them ineligible for legal copyright or patent protection.
The United States passed the Digital Millennium Copyright Act in 1998 as part of the WIPO Performances and Phonograms Treaty. Broadly, the DMCA prohibits hardware and software anti-circumvention tools, such as reading an encrypted optical disc. For both video game hardware manufacturers and for software developers and publishers, this helps to protect their work from being copied, disassembled, and reincorporated into a clone. However, the DMCA has been problematic for those in video game preservation that wish to store older games on more permanent and modern systems. As part of the DMCA, the Library of Congress adds various exemptions which have included the use of anti-circumvention for museum archival purposes, for example.
In present-day case law driven by decisions in the United States legal system, video game copyrights come from two forms. The first is by its source code or equivalent, as determined by the 1983 decision in Apple Computer, Inc. v. Franklin Computer Corp. that software code can be considered a "literary work" and thus subject to copyright protection. The second form is as an audiovisual work, as determined in the 1982 case Stern Electronics, Inc. v. Kaufman; while video games present images and sound that are not in a fixed form, the repetitive use of these in a systematic response to player's actions was sufficient for copyright protections as audiovisual works. In the case of the earlier hardware before programmable computer chips, copyright was also recognized by the impression of software based on the circuit board patterns and features that made games work as a form of fixation, as established by both Stern and the 1982 case Midway Mfg. Co. v. Dirkschneide, in which Midway successfully sued a company that was reselling repackaged versions of their arcade games Pac-Man, Galaxian and Rally-X.
Up until 2012, U.S. courts were reluctant to find for copyright infringement of clones. Driving case law in the United States was principally through the case Atari, Inc. v. Amusement World, Inc.. Atari had sued Amusement World claiming that its video game Meteors violated their copyright on Asteroids. The court did find twenty-two similarities between the two games, but ruled against Atari's claims, citing these elements as scènes à faire for games about shooting at asteroids. The case established that "look and feel" of a game could not easily be protected. Attorney Stephen C. McArthur, writing for Gamasutra, said that during this period, courts opted to take a more lax view to balance innovation in the industry and prevent overzealous copyright protection that could have one company claim copyright on an entire genre of games. At best, copyright holders could challenge clones by threatening cease and desist letters, or on other intellectual property rights such as trademarks.