All games, regardless of their type, content, country of origin, target platform
or supporting media, comprise some combination of copyrights, trademarks,
patented technology and trade secrets. A finished game often contains many
different intellectual properties, owned by many different parties. Sort of like
a soup, it can contain a few ingredients or many.
Just as a soup's ingredients
are categorized - broth, meat, vegetable, herbs/spices - the IP "ingredients" or
assets in a game generally fall into basic categories: code, art, audio, and
design. Within each category, some assets are created "from scratch" while
others are licensed from others, whether for reasons of efficiency or publicity.
The individual assets may be protected by copyrights, trademarks, patents, trade
secrets, or some combination of the above. The following list will parse out
some common property rights found in a completed game and the assets to which
they might apply.
Copyrights in Games
Copyright is probably the best-known Intellectual Property Right (IPR) to the
game industry at large and sometimes considered to be the only relevant IPR in
this area. Anything that can be fixed in a tangible medium (including computer
media) can be the subject of copyright: source, object and machine code,
artwork, design docs, budgets, and business plans, some user interface and
program structure, sequence and organization. At its most basic level, copyright
in a finished game protects the code embedded on the medium, e.g. the DVD-ROM,
the cartridge or even the file made available for download.
Entertainment
software piracy is typically fought as copyright theft actions rather than any
other type of action, because it is often much easier to prove than patent or
trademark infringement: the test is that the copyrighted work is copied or not.
It is a mind-boggling puzzle to the uninitiated to determine exactly the scope
of copyright protection in a game, because there exists as many different
copyrights in the game as original works of authorship featured therein.
For
instance, the musical score, the game-specific font, the artwork, the code in
its entirety or in function-specific portions, etc. may each be subject to the
copyright of a different author.
Types of Copyrights Found in Finished Games
Adopting a top-down approach to this exercise, the following types of copyright
may apply to a finished game:
- The code encompassing all of the features of the game (graphical user interface, music, speech, etc.) attracts copyright protection as a literary work, because it is the expression in written, albeit coded form of these features.
- All of the original design documents, either as computer files or sketches or print-outs also attract copyright protection as literary works, because they are expressed in writing.
- Concept artwork may separately attract copyright protection as artistic works - but note that there is no requirement that they be "artistic" in the "pleasing to the eye" sense of the word, merely that they be graphic works (or sculpture, photograph or collage).
- Motion capture data may attract copyright protection as a dramatic work, since a dramatic work is generally understood to include a "work of dance or mime".
- The plot or script may also attract separate copyright protection as a dramatic work.
- The musical components of the game, whether relating to cut scenes or in-game audio, will attract separate copyright protection as musical works; note that only the printed or encoded musical score attracts this type of copyright protection, since the lyrics are protected as a literary work.
- Generally, any type of sound sample, or reproducible combination of sound samples, attracts copyright protection as a sound recording.
A finished game may also fit the legal definition of a sound recording, film,
broadcast or cable program, attracting additional forms of copyright protection.
Some examples are provided below:
A game might fit the legal definition of a sound recording in the sense that it
reproduces encoded sound. An in-game song therefore attracts three copyrights
(musical, literary and sound recording) whilst speech samples attract two or
three different copyrights (literary, sound recording and - depending on the
degree to which voice acting pertains to the plot of the game - a dramatic work
copyright).
For the purposes of copyright protection, films are legally defined as "a
recording on any medium from which a moving image may by any means be produced."
A game might fit the legal definition of a film, and therefore be protected by a
film copyright, insofar as it is stored on a medium and reproduces encoded
moving images. Note that the definition only refers to the image, because the
soundtrack will have a separate copyright as a sound recording.
A finished game incorporating wireless networking technology may attract
copyright protection as a "broadcast", which is legally defined as "a
transmission by means of wireless telegraphy as visual images, sounds or other
information which is capable of being lawfully received by members of the
public, or which is transmitted for presentation to members of the public".
A cable program is legally defined as "consisting of wholly or mainly of visual
images, sounds or other information", wherein the difference is that a
"broadcast" is a wireless transmission, eg "over the airwaves", whereas a "cable
program" is a transmission "by means of a telecommunications system other than
wireless telegraphy".
Both the broadcast case and the cable program case offer unresolved legal
scenarios. Mere use of a wireless network doesn't constitute a broadcast - but
what does? What constitutes conveyance over a telecommunications system? The
downloading of the game? The transmission of images over an AV cable from game
console to television?
The above analysis only outlines the vast complexity of determining the extent
of copyright protection in a finished game. This extent will obviously depend
upon both the type and size of the game itself, but protection is only available
so long as the work it relates to is tangible, ie it is expressed (in code,
obviously) and not merely an idea in the mind of the developer.
Copyright Example
By way of example, let's consider a simple example with a classic game known to
all, Tetris. At its most basic, the game inventor Alexey Pajitnov would
originally own the copyright in:
- The game code as a literary work;
- The display as a graphic work; and
- The tunes as a musical work
If, however, at least one of the tunes was written by a friend, then this friend
would own the copyright in the musical work BUT Mr Pajitnov would still own the
copyright in the code comprising this tune, although possibly infringing his
friend's copyright.
Similarly, if the patterns on the bricks in the display were taken from abstract
drawings by yet another friend, then again this other friend would own the
copyright in the Tetris bricks BUT Mr Pajitnov would still own the copyright in
the code and display comprising those bricks, although infringing his friend's
copyright.
Copyright is the basis of license-based games and, in the 'Tetris' example
above, Mr Pajitnov would therefore seek a license with both his friends to
legally include their respective original works of authorship in his game.
Today's games comprise 3D worlds full of avatars, realistic models and textures,
dialogue, music, lyrics, cut-scenes, etc. Potentially many more copyright
licenses need to be addressed in the production of a contemporary game.
Trademarks in Games
The first and most obvious use of trademarks in games are the names and logos
associated with the game, the publisher, and developer. Commonly, publishers and
developers will have registered their company name and/or logo and/or even
signature sound sample as trademarks, whereby these are traditionally included
within the game in splash screens during the game's introduction, possibly,
further within the graphical user interface of the game itself, and on the box
and advertisements.
The specific characters, places and weapons will also be the subject of a
trademark, in some cases these are licensed from other entertainment properties.
Beyond the trademarks associated with the game as a product, there is frequently
inclusion of trademarks or servicemarks not directly related to the game itself
or its developers or publishers, by way of textures implemented onto in-game
billboards, models, racing cars etc. This can be done for the purpose of
heightening the immersion or accuracy portrayed by the game, or as advertising
for those real-life sponsors. An example would be the livery of a rally car
during the 2003 season, complete with real-life sponsors' names and decals
plastered all over, all of which are expectedly real-life registered trademarks.
Whereas the use of real-life registered trademarks in games can be a desirable
state of affairs, in that it lends a degree of reality portrayal, there is a
danger that some trademark owners either will not want to license their brand
for reproduction in a game or -worse- will not actually have a right to do so.
In addition, if permission is obtained, the trademark owners will require their
mark to be accurately portrayed.
Pushing this comment to its logical extreme, owners of registered trademarks or
servicemarks may even insist upon the inclusion of the international legal
notice and - if this insistence is only notified late in the development cycle �
this may generate supplemental, unnecessary overheads.
Types of Trademarks Found in Finished Games
- Game name and logo
- Company name and logo
- Technology name
- Platform and manufacturer name
- Distinctive sounds or colours
- Name and character designs of characters
- Slogans of original IP
- Unique weapons
- Other valuable marks
Trademark Example
Readers with an inquisitive mind may want to consult a judgment by Justice Jacob
(UK, Court of Appeal) on 26/06/02 against THQ following a trademark dispute
between the Fund (formerly World Wildlife Fund) and the World Wrestling
Federation, whereby THQ's continued marketing of its World Wrestling Federation
licensed games in the UK with the newly disallowed WWF logo would amount to
contempt of court because of the logo's presence on-screen, whether as a
splashscreen or as an arena-billboard texture!
This example makes the point that even a licensor may encounter trademark issues
that can spill over retroactively into a game. While this example could not have
been anticipated by the game developer, care should always be taken about
trademark and/or servicemark inclusion in screens, textures or any other portion
of the game.
Patents in Games
Patents are the least-known IPR to the game industry and usually held as the
most expensive and frequently irrelevant IPR. They certainly are the most
controversial. It may come as a surprise to the industry, however, that software
patents have been granted for a lot longer than attention has been devoted to
the subject both in the US and in European game communities, and that a growing
proportion of those are very relevant to technology used for modern game
application, be it in the fields of scene rendering, networking, user
interfaces, animation and algorithms to speed up any of these.
It is comparably harder to determine which patented technology is routinely
incorporated in games but, by way of example, any title making use of
semi-transparent menus or multiple frame buffering or distributing portions of
the game world across networks, could be potentially infringing on one or more
patents; the list goes on, interminably. Whether the patent assignee decides to
challenge the use made of the technology protected therein depends entirely upon
what the assignee has to gain from asserting its existence and validity.
Patents last for about 20 years, depending upon the jurisdiction. Many
once-lucrative patents covering base computing technologies such as
side-scrolling or use of interchangeable ROM cartridges have lapsed into the
public domain. Nonetheless, 20 years is a long time in game development, and
some technology or algorithm developed 5 years ago for which patents were
granted only last year may remain valid and useable for the next 10 to 15 years.
In lean times or for an assignee developer on the acquisition trail, enforceable
patents that are infringed present significant opportunities.
Types of Patents Found in Finished Games
Areas of a game that could involve patents include:
- Applied algorithms
- Display presentation
- Menu arrangement
- Editing functions
- Control functions
- User interface features
- Compiling techniques
- Program languages
- Translation methods
- Utilities
- Formulae to control program execution or process data
- Many other areas