Gamasutra - Hey, That’s MY Game! Intellectual Property Protection for Video Games

So you’ve created a video game. Naturally, you’re proud of the result after months of all-nighters spent programming and debugging the source code. Your game includes ideas, puzzles, game concepts, and user interfaces that no game has ever had. You’ve created artwork and graphics that are sure to enthrall even the most skeptical of gamers. Your game is most assuredly destined to be Game of the Year!

Too bad someone stole it and published it before you did. All your “guaranteed” profits gone in a flash. But that’s ok, because software is or at least should be free to copy, right? By becoming a software developer you have automatically bought into the notion that software should be open source, right? Who needs to be fairly compensated for their efforts when ramen noodles are 3 for $0.99?

You disagree? Ok, if you are actually upset that someone would copy your work, and want to know how to stop them from such illicit behavior in the future, read on. This article discusses the basic types of intellectual property – patents, copyrights, trademarks and trade secrets – and how to use them effectively to protect your video game. With a little advanced planning and basic knowledge of intellectual property, your video game will be protected … at least from a legal perspective.

Patents, copyrights, trademarks and trade secrets each serve to motivate innovators to create new and exciting games by providing various protections for their efforts. For example, the patent system encourages innovation by promising inventors a short period of exclusivity if they come forward with their inventions.

Without copyright protection, there is little incentive for authors and artists to create new creative works, because they naturally would be hesitant to create works that others could copy willy nilly without compensation to the artist (those ramen noodles sure are tasty, huh?).

Trademarks help ensure that the name you’ve made for yourself stays yours. And finally, trade secret law helps those who decide to keep their technology secret, like the famously secret formula for Coca-Cola®. The discussion below is a short walk through these forms of intellectual property.

Trademarks

Trademarks protect the goodwill and reputation associated with your company or video game as a brand. A trademark – any name or symbol indicative of a source of origin of a product or service – is arguably your most valuable business asset, and is perhaps also the most recognizable form of intellectual property. You can hardly drive down a major road without encountering a sign for a McDonalds® restaurant, a Coca-Cola® soda, or Nike® shoes. Many consumers purchase goods and services based on name recognition alone, e.g., EA or MADDEN.

There are two ways to protect your trademark from being copied. The first is through state trademark laws. Each state offers trademark protection based on the use of the trademark in that state. The second more common (and more effective) way is to register the trademark with the U.S. Patent and Trademark Office (USPTO), which provides protection throughout the United States.

Registered trademarks offer advantages over non-registered trademarks, and allow you to use the ® symbol. Once a trademark is registered, no other entity can use any name or mark that is identical to or is likely to cause confusion with your registered trademark anywhere in the U.S.

An exception arises where the other entity proves that it was using its trade name or mark prior to your trademark registration, in which case the other entity might have limited rights to use their name or mark in their geographic location.

How does this affect your video game? Your trademark serves as a source of origin for your game. It is your reputation, your lifeblood. You want gamers to hear your name and know that the game is going to be phenomenal. Without trademark protection, someone else can adopt the same name as you to produce games.

However, you have no quality control over their games, and they could ruin your public reputation and the goodwill you have worked so hard to create. Trademark registration is relatively inexpensive (current registration fee is no more than $375 per class of goods and services), and is typically the first form of intellectual property protection any venture formally secures.

Comments

Billy Zelsnack

25 Feb 2008 at 12:41 pm PST

Just what the game industry needs. More and more patent lawyer gold-digging assholes hanging around.

Aaron Lutz

25 Feb 2008 at 2:15 pm PST

They're not "patent lawyer gold-digging assholes" unless they then solicit you to acquire their services after informing you of these intellectual property rights. Otherwise, they're just patent lawyers who figured you might want to know how to protect your stuff. FYI.

Shawn McGrath

25 Feb 2008 at 5:05 pm PST

I dunno if this is a 'bad' thing necessarily. If I knew about these things before, I probably wouldn't feel "screwed" out of a game like I do now.

Steven An

25 Feb 2008 at 6:47 pm PST

Just like guns, lawyers don't screw people. People screw people.

Anonymous

25 Feb 2008 at 8:04 pm PST

Lawyers ARE people.

Jacob Rose

26 Feb 2008 at 10:45 am PST

Nice article! As an artist I go through a lot of time attempting to create an original idea. For someone else to go behind me and steal my hard work would furiate me and this has happened before; as I'm sure a lot of individuals feel that they once had this great idea which got sniffed right from under thier noses. I've done research on these aspects, but it is nice to have all of these choices to artists and developers in a straight forward and concise article. Bravo! And for all of those who critisize this article and it's shineing light to the people; you are probally the lazy scoundrels who prey on other's ideas and search out ways to get by these protective laws.

Matt Weaver

28 Feb 2008 at 5:03 pm PST

Actually Jacob, I'm a professional artist who has never once preyed on an idea other than one in my head, and think this article is total shit. It's adding more pressure and delusion to an already over protective system. Take for example the Atari patent for their Taxi game that protected its "system" that an invisible bubble around a moving vehicle perpetuated citizens in a virtual world to jump out of the way if the bubble entered the AI's line of sight. How more generalized could something get? Thats generic reaction to a simple collision detection system. It's not a NEW idea. And thus shouldn't be protected by Atari or some lame lawyer in the patent system.

This is seemingly more a plug for the law firm (as contact info is provided in the end) than an article on how "protect" something you create.

Erik Nichols

1 Mar 2008 at 7:32 pm PST

Personally, I believe that the best thing about the gaming industry is what this article denounces. I think the bog of copyright law will be the end of creativity in the long run, and don't want it anywhere near the gaming industry. Free expression and trade of thoughts and ideas are what makes a future for the gaming industry.