Intellectual property protection of video games
Jia Wang, deputy director of the Technology Service Center at Tencent’s office in Palo Alto, California, USA, recently told WIPO Magazine that "a game is both a creative and a technical product and IP protects both aspects.
There's a lot of IP involved in the games we develop, from the technical mechanisms that enable and enrich the user's experience to the storyline and the heroes we create.
[citation needed]’ In the United States, the underlying source code, and the game's artistic elements, including art, music, and dialog, can be protected by copyright law.
Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game.
[16][21] The United States passed the Digital Millennium Copyright Act (DMCA) in 1998 as part of the WIPO Performances and Phonograms Treaty.
For both video game hardware manufacturers and for software developers and publishers, this helps to protect their work from being copied, disassembled, and reincorporated into a clone.
[22] In present-day case law driven by decisions in the United States legal system, video game copyrights come from two forms.
Co. v. Dirkschneide, in which Midway successfully sued a company that was reselling repackaged versions of their arcade games Pac-Man, Galaxian and Rally-X.
[19] At best, copyright holders could challenge clones by threatening cease and desist letters, or on other intellectual property rights such as trademarks.
[19] These rulings suggested that there was copyright protection on the gameplay mechanics despite drastic differences in the games' art assets, though other factors, such as prior agreements between Spry Fox and 6Waves, may have also been involved.
Another related concept is scènes à faire (French for "scenes to be made"), where certain generic elements are considered essential to a fictional setting, and should not eligible for Copyright protection.
The phrase "process analogous to cinematography" has a non-exhaustive list attached, meaning that part of the definition is open-ended enough to allow for video games to be covered, but there is no jurisprudence on this issue.
[42] "It is unclear whether this new provision will affect video game authors due to the lack of qualification of this kind of work of authorship; this amendment to the Indian Copyright Act must, therefore, be further interpreted in this context...(it) must be interpreted by Indian courts in order to determine if it will apply to video game contributors and whether they shall have the right to receive royalties for the exploitation of their works.
The audio, visual and other creative elements of a game themselves are not directly covered by any EU directive, but have been enshrined in national laws as a result of the Berne Convention of which the EU and its member states are part of, with video games either expressly called out as cinematographic works or more broadly under audiovisual works.
[48] As part of the WIPO Performances and Phonograms Treaty, Japan amended its copyright laws in 1999 to prohibit hardware and software anti-circumvention devices, basing its language on the United States' own DMCA.
To republish a work, the publisher must have an agreement with the copyright owner, which for these older games may involve individuals that have died or moved to different fields and are difficult to track down.
[51][52] Though the government has introduced more stringent copyright laws in recent years and harsher penalties for violations, video game clones still persist in China.
The court's decision in favor of Tencent fixed two concepts that remained part of case law: access to the original game, and whether there was substantial similarity in the claimed elements that violated copyright.
[53] Notably, many of the patents for the Famicom and NES expired in 2003 and 2005, respectively, leading to additional grey market hardware clones within a short time.
[60] Other known examples of gameplay patents include those for minigames on loading screens filed by Namco, the dialog choice wheel used in Mass Effect games by Bioware, the katamari of the Katamari Damacy games from Bandai Namco, and the Nemesis system from Middle-earth: Shadow of Mordor by Warner Bros. Interactive Entertainment.
For example, Rebellion Developments filed to register its "Kill Cam" mechanic as a trademark from its series Sniper Elite in October 2017, though as of February 2018, the application is still being reviewed.
In 2020, a New York district court ruled that Activision did not violate trademark law by including a Humvee in its Call of Duty game.
[65] In a similar vein, the 2022 case Saber Interactive Inc. v. Oovee Ltd. also highlighted the tension between trademark protection and artistic expression in video games.
The court found that video games are expressive works deserving of First Amendment protection and that Oovee’s use of the K-700 did not infringe on Saber’s trademarks.
Applying the Rogers test, the court determined that Oovee’s depiction of the K-700 had no artistic relevance to Saber's and did not explicitly mislead consumers.
[66] These cases demonstrate that while realism is a valued aspect of immersive gaming, courts carefully consider the balance between artistic expression and trademark rights, often favoring the former when it serves a genuine creative purpose without misleading the public.
This can come in many potential forms: This type of licensing tends to pose an issue for the retention and preservation of video games particular on digital download services.
[69] In one predominate example, Grand Theft Auto IV had to update the game for all digital owners to remove songs on the soundtrack which their ten-year license had expired.
[73][74] Similarly, the United States Court of Appeals for the Ninth Circuit in In re NCAA Student-Athlete Name and Likeness Licensing Litigation held that under the transformative-use test "EA's use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.
[77] This continued until 2021, when changes to NCAA name, image, and likeness policies allowed student-athletes to personally license and profit from their publicity rights.
