IP Strategies for the Billion-Dollar Video Gaming Industry

The global gaming market was estimated at over $165 billion in 2020, and the revenue generated by the industry propelled to more than $173.8 billion in 2021. As the industry now seeks to rival well-established forms of entertainment such as films, television, and TV shows, it becomes all the more important for developers to better protect their creations in light of the increased competition.

When it comes to monetisation of video games, it’s the developers, publishers or the first parties/ distributors who take home the majority of the profits. However, the development of online streaming services has changed the narrative. For instance, YouTube and Twitch, along with ancillary platforms such as Floatplane, OnlyFans, etc., have taken content creation to new levels by enabling end users to monetise their gameplay through ad revenue, donations, and recurring subscriptions, transforming their passion into a profitable endeavour.

However, beneath the captivating gameplay and the fancy lustre lies a complex web of legal considerations pertaining to Intellectual Property Rights (IPR), labour laws, antitrust laws, etc. In this article, we will be focussing on how developers can protect and enforce their IP rights.

What does Video Game Development Encompass?

One can hardly appreciate a video game that has a great concept but whose production stalled during development and never saw the light of day. Developing a video game is a complex and fascinating process involving several stages, each crucial to creating a successful game.

After conceptualisation, the steps involved in video game development include hiring a skilled team, concept development, creating a Game Design Document (GDD), and zeroing in on the model of monetisation, production, and testing.

Patentable Inventions at a Glance

When game developers realize that they have something unique in their hands, they immediately think of filing a patent application before finalizing a novel, useful and non-obvious (the patentability criteria) product. The first rush to register a video game as a patent was done back in 1969 when a man by the name of William Rusch filed a patent application for a “Television Gaming Apparatus” that used a paddle-type control to move onscreen objects that collided with other onscreen objects. [1]

Patents are a meaningful way of securing technological innovation in the industry. Take Electronic Arts Inc. (EA), for example; in April 2023, the company applied for a new patent in the United States titled “Three-dimensional reconstruction of objects based on geolocation and image data.”[2] This patent has introduced a new method of generating realistic three-dimensional (3D) representations of real-world objects using artificial intelligence (AI) and machine learning technologies. It uses geolocation and image data to create detailed 3D reconstructions, significantly streamlining the process and overcoming the limitations of traditional 3D scanning techniques. So, the next time you see the dense, highly detailed streets of New York in an EA game, you know who to thank.

Nintendo, on the other hand, owns a patent for a program that detects the time of the gaming system, analyses it, and makes a probability chart that spawns particular creatures on the map at a specific time, which allows for various entities to simultaneously appear as characters on the map depending on the time allowing for more depth and definition to the gameplay.

Activision has a patent for their Call of Duty lineup of video games, which is described as a system and method that encourages players to make in-game purchases for various types of content. For instance, the system may match a more expert/marquee player with a junior player to encourage the junior player to make game-related purchases of items possessed/used by the marquee player. A junior player may wish to emulate the marquee player by obtaining weapons or other items used by the marquee player.

Video Games as Cinematograph Films

The protection accorded under copyright laws extends to computer code (including primary game software code and database structures), artwork (such as animations, script, plot, architectural works, etc.), audio elements (for instance, voice lines of video game characters), and internal and external sound effects.[3] Video games have evolved significantly over the years, becoming increasingly cinematic in their visuals, storytelling, and overall experience. This has led to a growing debate about whether video games should be considered cinematograph films.

Section 2(f) of the Copyright Act, 1957 defines a cinematograph film as “any work of visual recording and includes a sound recording accompanying such visual recording and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films.” The said definition is broad enough to encompass video games, as they involve the creation of a sequence of images displayed on a screen. [4]

India has no elaborate system in place to censor or control upcoming video games. However, there are certain provisions that one has to be mindful of before finalising the storylines. For instance, Section 292 of the Indian Penal Code, 1860, criminalizes the sale, distribution, or publication of obscene material through any objects. Subsequently, the Information Technology Act, 2000, came to be enacted. Section 67 of the Act imposes a punishment for publishing or transmitting obscene material in electronic form.

Other Aspects to be Considered

With advanced motion capture, graphics design, and game engines available to a developer, it is essential that when detailed video game assets are created, the developer is not under a constant threat of his hard work and his well-earned recognition being stolen from him.

A developer can get a trademark for the following aspects of the video game: –

  • Name of the game
  • Any in-game character
  • A logo or slogan that was used to advertise the game
  • The computer icon that represents the video game during marketing or sales

Previously, copyright was the only way to protect a Graphical User Interface (‘GUI’). Now, one can also seek protection for GUI via the Designs Act, 2000, as well; Class 32 of the Locarno Classification of Designs grants protection to the GUI via a design.

The case of Kyle Hanagami v. Epic Games Inc. et al – 24/08/2012 (CDCA) is an interesting one that concerns the copyrightability of game animations. Herein, the choreographer, Mr. Hanagami, posted his dance sequence to Charlie Puth’s song, ‘How Long’ on YouTube in the year 2017, and this sequence was registered as a copyright in the US. Later, Epic Games, creator of Fortnite, released a purchasable in-game emote called ‘It’s Complicated’. The Plaintiff filed a lawsuit against Epic Games, alleging that the said emote contained the ‘most recognizable’ part of his choreography and was unfair competition to his work. This suit came to be dismissed, with the Court holding that the works of both parties did not share any creative elements.

A key aspect of the extent of protection accorded is whether the nation supports individual protection of IP Rights or only supports it when it is connected to an original work of authorship fixed within a tangible medium of expression. China, Canada, Italy, Russia, Argentina, Singapore, Uruguay & Spain recognize video games as a graphical interface within functional software. Viewing a video game merely as a computer program is incorrect in today’s world, wherein middleware is used as a baseline to create video games. This is when the software is not the same throughout, as artistic and functional modifications are done to the game engine all the time to ensure that the engine is tailored to the needs of the developer and the video game.

On the other hand, countries like India, Japan, Sweden, the US, etc., seeing the complexity involved in making video games has given them a ‘distributive classification’, meaning each creative segment of the video game is given protection per its specific nature. [5]

Conclusion

In this dynamic industry, where video games rival movies in complexity and reach, understanding IP’s nuances is paramount. Well-known game publishers like EA, Activision and Nintendo obtain the necessary patents as and when they release new games, which help them tackle the unique challenges presented in the field of video game development and monetization. Fostering an environment that rewards creativity, innovation, and responsible commercialization, the IPR laws of today stand as a linchpin shaping the industry’s vibrant future.

References:

[1] Dannenberg, R. (2007, January 19). The ten most important video game patents. Game Developer. https://www.gamedeveloper.com/business/the-ten-most-important-video-game-patents

[2] Legal, F. (2023, April 4). Interesting patents: Electronic Arts – revolutionizing the gaming industry with AI-driven 3D reconstruction of real-world objects: April 4, 2023: Founders legal®: Bekiares Eliezer LLP. Founders Legal® | Bekiares Eliezer LLP. https://founderslegal.com/interesting-patents-electronic-arts-revolutionizing-the-gaming-industry-with-ai-driven-3d-reconstruction-of-real-world-objects/

[3] Computer and Video Game Law – Cases, Statutes, Forms, Problems & Materials, by Ashley Saunders Lipson and Robert D. Brain, Carolina Academic Press, 2009, p. 54.

[4] Mandhana, M. (2020, May). The emerging need to protect video games: The rights of developers and Key Stakeholders. “The Emerging Need to Protect Video Games: The Rights of Developers and Key Stakeholders. http://www.penacclaims.com/wp-content/uploads/2020/06/Madhav-Mandhana.pdf

[5] Ramos Gil de la Haza, A., & Bardají & Honrado, Abogados. (2014, August). Video games: computer programs or creative works? WIPO Magazine, 4/2014.

Image Credits:

Photo by thiago japyassu on Pexels

India has no elaborate system in place to censor or control upcoming video games. However, there are certain provisions that one has to be mindful of before finalising the storylines. For instance, Section 292 of the Indian Penal Code, 1860, criminalizes the sale, distribution, or publication of obscene material through any objects. Subsequently, the Information Technology Act, 2000, came to be enacted. Section 67 of the Act imposes a punishment for publishing or transmitting obscene material in electronic form.

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