A Good Game to Play: Inside the IP World of Video Games

Vineeta Gajwani, Drew Boortz, and Brian Pyne

©2015. Published in Landslide, Vol. 7, No. 4, March/April 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

“Occasionally we get to play games for work, which isn’t exactly a bad thing.”

Recently, Landslide® magazine approached attorneys from three major players in the video gaming industry for their comments on a intellectual property issues facing the industry. Many of the IP issues they see are the same as in any IP practice (copyright, trademark, publicity and privacy rights, idea protection and licensing), but the application of the issues is unique. These players may also work with special IP areas in video game licensing, such as cross-media deals, publicity rights, and clearances. This multi-billion dollar segment of the entertainment universe presents a world of potential for attorneys like these who are keen on practicing in a field that is still developing and facing new issues all the time-and grew up and still love to play games themselves.

This is increasingly a fascinating game for its IP players.

A colleague of mine once said that attorneys in games have to be the un-fun people in a fun industry. That’s true to an extent, every attorney has to nix a creative but risky idea or take an unpopular stance from time to time, but there’s a tremendous amount of enjoyment from this industry. – BP

The majority of a video game is subject to copyright protection—the storyline, the universe, the lore, the software code, even the characters in some cases. In addition, some parts of a game can be protected by trademark or patent law, though these are generally more limited in application. – DB

The best copyright protection comes from the game itself—the more unique and story driven a particular game is, the broader the protection that it will receive. – VG

While disparities in development budgets and visuals are oft-cited differences between AAA titles and “casual” games, these two experiences are blurring fast. Simpler games typically include fewer protectable elements, and shorter development schedules leave less time for adequate legal review. – BP

Video games—especially online games—require much more technical support and infrastructure than other forms of entertainment. For example, if you only have rights to the U.S. to present a play, you choose not to stage a run in Canada (this is a gross oversimplification, but illustrative of my point). In an online game context, however, you have to avoid distributing the product in territories you don’t control and you have to work to prevent players from those territories coming onto your service. The manner in which players try to mask their location can be incredibly sophisticated, and so your prevention activities need to be just as sophisticated. This impacts license drafting in that you need to consider what you are set up to do technically, and whether that fits the requirements of the agreement: are you under a “reasonable efforts” requirement to block specific region IPs, or are you guaranteeing that no one from outside the permissive territories will be able to access your service? If you’re working under “reasonable efforts,” how do you define that? By reference to “industry standards” or by some other specification you detail in the body of the agreement?

Another area of complexity comes from the interactivity of games. Thanks to this interactivity, you need to consider not just legalities but also cultural sensitivities. Skeletons are common devices in video games, but in some countries around the world a talking (or worse, fighting) skeleton is seen as disrespectful and offensive. Now you have a choice—a globally unified version of the game, or games that have been content-tailored to the specific mores of a region? So not only do you have to be aware of such issues, but you as the attorney need to make sure the license allows you to make changes to deal with cultural variations (or at least empower you to get the developer to make the changes). – DB

The game industry is an IP lawyer’s dream: many interesting IP issues at the cutting edge of technology and content creation. Unique game industry issues include dealing with “gold farming” for virtual coins along with account phishing, advising the business on the First Amendment protection that applies to their creation of expressive works, and setting appropriate guidelines for user-generated or “fan” created content. – VG

Many industries have to fight patent infringement claims, but the games industry seems to be fighting these more and more, and in ways that are somewhat more abstract than, say, copying a patented device. That abstractness makes the recent trend towards negating patents in light of the Alice Corp. decision all the more important for patent infringement cases brought against video game publishers and developers. In addition, video games are unique in that the player (the consumer of the entertainment content) plays a role in storytelling. Thus, many components of the entertainment product that would otherwise be passively included are now an active part of the experience. For example, a video game about football doesn’t just recap a particular athlete’s or team’s efforts; it allows someone to play as a particular athlete or team. A specific helicopter in a military-themed game might be more than a background prop; it might be something a player can fly. This ability to interact with things as part of the storytelling makes video games unique, and courts have sometimes struggled to apply that uniqueness to established law. – DB

Increased invalidation of patents on the grounds that they cover just abstract ideas will be very important as the industry continues to face off against patent assertion entities. Also, as technology expands the media on which games can be played—VR, wearables, etc.—the industry will have to come to grips with the impact of that new media from both a business and legal perspective. – DB

Idea/expression dichotomy in copyright law is harder to apply in video games than in other creative works. One can get into trouble when trying to parse the line between un-protectable ideas and protectable expression in the context of games. In Tetris Holdings, the court determined that the “ideas” behind Tetris used a fairly high level of abstraction, which meant that a lot of things ended up classified as protectable expression. Had the court picked a less abstract starting point for defining what is the “idea” behind a “puzzle where shapes fall from the sky” game, the result would have been much different. In Spry Fox v. 6waves, both companies offered “match 3” games. These games functioned similarly, and had similar themes, but looked different from one another. The idea/expression dichotomy would likely have played a major role in deciding this case had it gone to judgment, and may not have been as clear a case as Tetris. – DB

The application of idea/expression dichotomy can become much more complicated when dealing with video games as a result of a number of elements that are prominent in games but minor or completely absent in other creative media (e.g., user interfaces, non-linear narratives, tasks, and scoring elements). – BP

In this field it’s just as important to become familiar with the business and development challenges that game developers and publishers are facing at present and as the industry continues to grow and change. It also helps to spend some time learning about and playing games of all types. It could be difficult to demonstrate your expertise to a game industry client if, for example, you don’t know the difference between an MMO and a MOBA, you’re not familiar with how ads are displayed in mobile games, or you don’t understand the importance of distribution via Steam. – BP

Vineeta Gajwani

Vineeta Gajwani (VG) is senior counsel of intellectual property for Electronic Arts, Inc., where she manages the trademark portfolio and IP enforcement program and provides legal advice on IP disputes and licensing.

Drew Boortz

Drew Boortz (DB) is general counsel for Nexon America, Inc., where he oversees all legal activities for the company, from negotiating and drafting publishing and equity investment deals to overseeing litigation to ensuring regulatory compliance.

Brian Pyne

Brian Pyne (BP) is director of legal affairs and enforcement for the Entertainment Software Rating Board, where he investigates enforcement matters concerning compliance, negotiates various agreements for the organization, maintains the trademark portfolio containing the rating icons and logos, and assists in policy development.