Video Games and the law: Copyright, Trademark and Intellectual Property

Planning on creating a video game, or created one already? This guide will help you understand some the frequent questions about copyright, trademark and intellectual property when it comes to video games.

Learn how video games are protected under copyright and trademark law, how to respond when your game is removed from the web or a mobile app store by a DMCA takedown notice, and the many ways the law affects the creative process of making a video game.  Find a question you're interested in below and click it to get some answers.

Frequently asked questions about video games and the law:

What is copyright?

What parts of the video game are copyrightable?

Is my artwork copyrightable?

How will a court determine if a video game infringes another video game?

Speaking of sports video games, does this mean I can include real life athletes and sports statistics in my game? 

Can I create a game with a similar concept to another video game?

Are video game titles copyrightable?

 How do I make money? And how does this affect me legally?

What are possible issues with advertising?

What do I do if I receive a notice that I am in violation of the Digital Millenium Copyright Act (DMCA) 17 U.S.C. §512?

What is copyright? 
Copyright protects artistic and literary expression.  While this meant just books, maps and charts at the beginning of the United States, today it covers a broad variety of creative expression from email, to websites, to video games. Please see our Citizen’s Legal Guide to American Copyright Law for copyright law basics.
 
What parts of the video game are copyrightable?
Generally speaking, the underlying code is protected as a literary work, and the artwork and sound are protected as an audiovisual work. While you don’t need to have the work (ie your video game) registered to covered by copyright law, there are advantages to registration (see our guide to copyright law), and you can seek registration at http://www.copyright.gov/.  
 
Is my artwork copyrightable?
Yes. However, your artwork only has copyright protection insofar as no one can just closely duplicate it. For example, if a video game has a princess and she looks like Princess Toadstool, that could be in violation of Nintendo’s copyright (unless the game obtained a license or had a good fair use reason to use the character). If your princess was of your own creation, then you should be fine.
 
Similarly, certain artwork in video games falls under the doctrine of scenes a faire. This references particular artwork and elements of a video game that are necessary to execute a particular idea and are NOT copyrightable. That includes things like the scoring system, the lives, the coins, and the sky/ground. Scenes a faire also applies to certain genres of games. For example, if you have a golfing game, you would include certain design elements like holes, golf balls, golf clubs, golfers, grass, trees, and water.  While you can’t copy these elements verbatim from another golfing game, you have the right to include such elements in your game because otherwise no one else could create a golfing game..
 

 

 

 

 

 

 

 
 

 

 

 

 

 

 

PGA Tour Online and Golden Tee Golf: Scenes a faire

 
 
How will a court determine if a video game infringes another video game?
 
Here a very brief discussion of how the courts look at video games in determining whether two works are subtantially similar enough to warrant infringement.
 
The first approach is from the 2nd circuit "The Subtractive Approach" (Altai, Nichols) and the other approach is "The Concept and Feel Approach" (Ruth Greeting Cards, Krofft)
 
Subtractive Approach 
 
It begins looking at the whole work then takes it apart element by element. After separating out the protectable elements from the unprotected, then it looks to see whether the protectable parts are substantially similar. This naturally favors accused infringers.
 
For a developer who creates a Pacman clone game for example, they would have a reasonable shot of success where courts use this approach because if level designs and sprite designs themselves weren't copied, then all of the organization and arrangement that make up Pacman's gameplay has become scene-a-faire in the 2-D video game development world.
 
Total Concept and Feel Approach
 
The court doesn't dissect a work into "protected" and "unprotected." Instead, the court reasons that a work should be looked at as a combination of its parts. This naturally favors plantiffs because they can essentially argue that all sorts of "facts," "phrases,"  "stock characters," and especially "ideas" that aren't normally protectable can be protected.
 
Under this analysis, a Pacman clone may face more of a challenge.
 
Even though a game's concept/gameplay isn't protected by the letter of copyright law, in practice because of these differing approaches, and the difficulty in identifying exactly what in a video game is an “idea” or “expression” for purposes of copyright law, you copy a game's concept and overall feel at your own risk. 
 
Speaking of sports video games, does this mean I can include real life athletes and sports statistics in my game?
 
It’s advisable not to use any real life persons in games unless they consent to it. They could potentially bring a variety of claims against you, specifically right of publicity, which protects an individuals right to have their name or likeness (voice, image, etc) exploited commercially. While using statistics is not a violation of the right of publicity per se, be careful how they are presented. A critical issue is whether it looks like the athlete or celebrity is endorsing your game.  Here is a good guide from the Citizen Media Law Project on using the name or likeness of another.
 
Can I create a game with a similar concept to another video game?
 
Yes, but be careful. This is another complicated area. If you wanted to make a game about ghost hunting, then that is fine. It is much more treacherous territory if you just recreate Pac-Man. Copyright protects the expression of an idea, but not the idea itself. This is not so easily parsed out with video games, so if you are worried that you may be replicating someone’s expression, its a good idea to seek the advice of an experienced attorney.  New Media Rights offers assistance here.  
 
Are video game titles copyrightable?
 
No. But they are protected by trademark. Trademark law concerns itself more with marketing, branding, and business practices, and is concerned with avoiding confusing consumers as to the source of a product or service.  Even if you do not call your game the exact same thing as another video game, you can still be found in violation if your game has a confusingly similar title.  So if you are creating a competing game that shares some similarities with another game, you will often want to avoid using a confusingly similar name for your game to avoid a trademark violation.
 
A similar issue arises out of meta-tagging. Embedding another product’s name into your website in order to garner more search engine traffic could possibly lead to trademark violation issues.
 
Are game controllers and consoles copyrightable?
 
These are considered functional elements of a game, so they are generally not copyrightable. Copyright does not protect useful products. If you come up with a unique system or device, it is possible seek patent protection. Patents protect inventions and processes that are nonobvious, useful and new. Patents must be registered at the United States Patent and Trademark Office (http://www.uspto.gov). It is strongly recommended that you get a patent attorney to file this for you: it is a very complicated area of the law and a mistake could cost you the protection. You should seek assistance ASAP !


 
 
 

 

 

 

 

 

 

 

How do I make money? And how does this affect me legally?
 
You can make money by either charging people directly or using advertisements. Be aware that monetizing your product may have a negative effect on any fair use claim you believe you have. Read more on fair use here: http://www.newmediarights.org/guide/legal/copyright/fair_use/citizens_legal_guide_fair_use_copyright_law.
 

What are possible issues with advertising?
 
There are two ways in which you can advertise online: one is to place advertisements for your own game; the other way is to host others’ advertisements on your site to produce revenue. There is a potential trademark complication with advertisements; make sure you are not using another’s brand name (ie. the name of the video game) in order to free ride on their success. Remember to carefully read the Terms of Service of the ad service you choose to go with.
 
What do I do if I receive a notice that I am in violation of the Digital Millenium Copyright Act (DMCA) 17 U.S.C. §512?
 
The DMCA provides a shield from liability to online service providers (OSPs), which covers a broad variety of services from your internet access provider to app stores like the Android Market and Iphone app store that host video games. If you are suspected of copyright infringement, you may receive a take-down notice via the DMCA. You can respond with a counter-notification to have your content restored; however, while that will restore the content, you agree that the copyright owner can bring you to court. So while a counternotice can be a good tool to restore your content, you want to make sure you you are careful in considering whether and how to respond to a DMCA takedown notice, and it would be wise to seek legal counsel. You can read more on the DMCA here: (http://www.newmediarights.org/guide/legal/copyright/citizens_legal_guide_digital_millenium_copyright_act_dmca).
 
If you have any other questions regarding video games and copyright please don’t hesitate to contact New Media Rights.

 

Images:

"676 - Burning Pac-Man -- Seamless Texture" by Flickr user Patrick Hoesly used under Attribution 2.0 Generic (CC BY 2.0) Creative Commons License

"Video game consoles: Atari 2600, SNES, NES, PS2 Slim, Wii, Game Cube" by Flickr user turkguy03199 used under Attribution-NonCommercial-NoDerivs 2.0 Generic Creative Commons license

"8-bit Basement" by Flickr Profound Whatever used under Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0) Creative Commons License

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