As a preface, I am a gamer. Since playing text based games at the age of 6 on a TRS-80 (Pyramid 2000), to ESO and Fortnite today, video games have always been a part of my life.
(My Solo win in Fortnite without firing a single shot – Ghillie Suit FTW)
Fifteen years ago, video games were considered obscure things nerds would play in small groups and LAN parties, or perhaps a place to play a game of Madden with your friends. These days, video games are a massive cultural aspect, with the video game industry accounting for over $100 billion dollars in revenue a year.
But as anyone who has ever played a game on the mobile device knows, there is never just one title in any genre. For every PUBG, there will be a Fortnite. For every Candy Crush, there will be a dozen tile matching games (or 17).
But why are there so many copycats and how do you protect your game from copycats?
Intellectual Property in the Video Game World
When thinking about protecting a video game, the law turns almost exclusively to intellectual property (IP) rights.
IP rights are a bundle of protections that comprise:
- Trademarks; and
- Trade Secrets.
Each of these various prongs are directed to a different potion of the actual construct of a video game.
There are two separate types of patents – design patents and utility patents. Design and utility patents protect two very distinct portions of a video game.
First, design patents may be applied for to protect the UX/UI (User Experience / User Interface) of a game. For instance, if you have a novel layout that is ornamental in nature, you can protect the ornamental appearance of the design.
However, these design patents truly only cover the single ornamental design. So if a competitor changes your cute little fruit to cute little gems, the design patent will not be sufficient to protect your game design.
One advantage of design patents is that they can be obtained quickly, relative to utility patents.
Utility patents cover the novel aspects of the actual game, such as game mechanics. A utility patent can cover anything from gameplay mechanics and methodology, to user interface functionality, to how data is received and processed by the underlying computer systems. Truly, anything that is utilitarian, can potentially be covered by a utility patent.
There are of course limitations, especially when it comes to video games. First is that for an aspect of the game to be protectable, it must be patent eligible subject matter, and in the case of video games, this means the claimed inventive aspects of the video game must be more than an abstract idea.
While there are a lot of considerations to think about as to whether a utility patent is right for you in protecting your video game, it is definitely still something to consider, and something that large companies are doing, even on the most nuanced portions of their games.
For instance, Zynga Inc., just received a patent on an aspect of their Frontierville (The Pioneer Trail) game. Namely, using a “Show Me” button in a game to identify to users how to perform tasks in a game that may not be easily apparent until detailed to the user. (US Patent No. 9,962,612, granted May 8, 2018). Similarly, Nintendo just received a patent on an aspect of matching players that are close in proximity to one another for providing the ability to share user information with one another. (US Patent No. 9,967,737, granted May 8, 2018). As you can see, if it has functionality, or relates to game mechanics, it could potentially be patented.
There are significant considerations to be made with respect to filing a patent. But we will save those for a series of separate articles, as the actual process of drafting, filing and prosecuting a patent can be quite complex.
One additional benefit of having a patent is that since it covers the mechanics of a game, it is likely to cover other games that copy or lift from your game design. Further, patents may also be licensed or assigned to others, providing additional streams of revenue, value and capital to your company.
Copyrights cover the actual expression of the video game. Copyrights can cover your artwork, the source code, the plot lines, the video cutscenes, the audio elements, and more. If it is an audio, visual or textual work, it most likely may be copyrighted. Again, there are limitations, but assuming there is a level of creativity and originality involved, it may be protectable.
The main limitation on copyrights is that they generally only cover the actual expression, not the ideas or concepts behind the expression. While there are several examples throughout the years, there are two relatively recent cases that we can look at to drive the point home about what is and is not protected via copyright.
The first is Tetris Holdings LLC v. Xio Interactive Inc., 863 F. Supp. 2d 394, 410 (D.N.J. 2012), which involves the venerable classic Tetris, versus a virtual clone, “Mino”. Below is an image of the two games side by side.
It is not hard to see the similarities, because Xio’s intent was to copy the game mechanics and gameplay of Tetris. As noted before, these are aspects of a game that are not protectable by copyright. However, the court found that Mimo went beyond just copying the game mechanics, but copied the actual expression. The court even pointed to other examples of how one could create a legal clone without running afoul of copying the expression, noting in particular Nintendo’s Dr. Mario. So here, if you are truly copying not just the game mechanics, but the overall look and feel, you may be running afoul of copyright laws.
US Patent 5,265,888 – Dr. Mario Patent!
But what if your game is nothing more than a copy of the game mechanics, with no similar appearances? Well, we can look to our second case, DaVinci Editrice S.R.L. v. Ziko Games LLC, 183 F. Supp. 3d. 820 (S.D. Tex. 2016), for the answer. In this case, DaVinci Editrice, maker of the popular card game, “Bang!”, accused Ziko Games of distributing a game, “Legends of the Three Kingdoms” (“LotTK”), that infringed DaVinci’s copyrights.
In this case, the appearances were completely different. Bang! Was a game situated in the wild west, while LotTK was set in ancient China. The cards looked different. The artwork was dissimilar. Visually, the similarity ended at the fact that they were both card games. Instead, DaVinci argued that LotTK copied the characters of Bang!. Bang! had a Sheriff, Deputy, Outlaw and Renegade that had the exact same functionality as LotTK’s Monarch, Minister, Rebel and Turncoat.
However, the court found that this amounted to nothing more than copying of game mechanics, which are not subject to copyright protection. Notably, the court found that these mechanics are dissimilar to book or movie plot, which would be protectable.
So, when it comes to copyright protection, it is truly the expression that matters.
Trademarks protect the branding of a game. Trademarks can truly extend to anything that evokes in the consumer the origin of a good or service. It is not just the game name, studio name, or logos, which are what most people commonly think of when they think of trademarks. Trademarks can also extend to color (e.g., Tiffany & Co. have a registration for their robin’s egg blue boxes with white ribbons), sound (e.g., NBC has a registration for the three note “NBC Chimes” – you probably just heard it in your head) and even scents (e.g., Hasbro registered the smell of PLAY-DOH).
In the video game world, you can protect identifiers like the game name, studio name, taglines, and logos. But you can go further, like Microsoft did for HALO’s Master Chief, and trademark certain names and other aspects, to the extent that they identify the source of the product or service.
One main consideration with trademarks is that they cannot be generic or merely descriptive of the underlying goods or services. You could not get a trademark on the term “First Person Shooter” as that is merely a generic term for a type of game. Examples of merely descriptive marks may be something along the lines of “Goat Simulator”. This is actually a good example in that, while you can never get a registration on a mark that is generic, you CAN actually get a registration on a mark that is descriptive IF that mark develops “Secondary Meaning.” Secondary meaning is when the consuming public comes to know the descriptive mark as an origin of goods or services. Goat Simulator may have been descriptive of the game at first (i.e. a game that simulates the life of a goat, quite questionably I may add), but with hundreds of thousands of downloads under its belt, it likely has become a name that most people recognize.
Marks that are suggestive, arbitrary or fanciful are able to be protected without any evidence of secondary meaning, and may be registered immediately, assuming the mark is in use. That is, assuming it is not confusingly similar to another mark in use.
Trade secrets are the secret sauces kept under lock and key. These are things like the recipe for Coca-Cola or the KFC’s 11 Herbs and Spices, at least until they were revealed. Which is the crux of trade secrets. They are only trade secrets for so long as they remain a secret. Here, the real priority is ensuring that you properly keep access to these trade secrets as limited as possible. Once out of the bag, there is nothing you can do to put them back in the bag.
For trade secrets, developing policies around access, maintenance and security of the information is crucial. Sure, you may be able to sue the employee or company who stole your trade secrets, but after that, it is in the public domain for good.
There are numerous aspects of intellectual property that apply to video games. It is important to come up with a plan to protect those rights, and determine what bag of rights you would like to protect and how to protect them. Coming up with a strategy that works for your game is crucial, and timing can be very important, as each of the various types of intellectual property has ramifications for not taking action by a certain time. Speaking with counsel about creating and implementing the strategy should be part of any game development process.