Hey, Thatís MY Game! Intellectual Property Protection for Video Games
February 25, 2008 Page 2 of 3
Copyrights are the second form of intellectual property, and protect the expression of an idea (but not the idea itself). Take Pac-Man, for example. Copyright protection protects the actual artwork and sounds in the game as an audiovisual work, and the underlying source code as a literary work. No one can copy the actual images and sounds used during the game, illustrated in Fig. 1, or the underlying program.
However, copyright does not protect the idea of a player controlled character eating dots in a maze-like game board while being chased by differently colored evil characters such as the caterpillar game shown in Fig. 2.
Copyright protection exists the moment an author fixes an expression in a tangible medium. This means the moment you save your source code to disk, or you sketch out the artwork for your game character or level art, you automatically have copyright protection without doing anything further.
An author can also choose to register the copyright with the U.S. Copyright Office (current registration fee is $45), which provides certain additional benefits, such as the right to statutory damages for copyright infringement. Copyrights were historically regarded of as the only form of “substantive” intellectual property protection for computer software, but that couldn’t be farther from the truth.
Patents – the third and most diverse form of intellectual property – protect inventions from being copied. An invention is any new and useful process (e.g., game play methods, graphics techniques, user interface communications), machine (e.g., a computer programmed with computer software), article of manufacture (e.g., a disk or storage media on which software is distributed), or composition of matter, and also includes new ornamental designs (e.g., icons, user interface artwork, characters, etc.).1 Patents can be thought of as protecting ideas, whereas a copyright only protects a particular expression of an idea.
All patents include a description of the invention as well as one or more “claims” that define the legal metes and bounds of your invention (similar to physical boundaries of real estate that a trespasser must stay out of).
Determining these bounds accurately is important, because a patent provides a limited but powerful monopoly on what is claimed, and prevents for a limited time anyone other than the patent owner from making, using, selling, or importing an item, or performing a process, that is encompassed by the claims of the patent (such an act would be considered patent infringement).
A claim drafted too broadly may be invalid for attempting to encompass what is old or obvious, while a claim that is too narrow may be ineffective against competitors making minor modifications to your invention.
Once a patent issues, the patent owner may negotiate a license with competitors who are practicing the invention, or sue for an injunction and/or monetary damages. Because claims are generally drafted to encompass something broader than a specific commercial product, patents can provide broad protection against competitors who copy your idea but make minor changes in an effort to avoid the patent.
1 A third type of patents, which protect asexually reproducing man-made plants, are not discussed in this article.
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