The two forms of IP that are most applicable to the video gaming industry are trade marks and copyright. A trade mark serves to protect the developer’s brand whereas copyright protects the actual source code being developed, as well as the outputs resulting from such source code.
Video game developers usually contribute a large portion of the game’s budget towards marketing, as the relevant purchaser usually identifies the source of the game through the packaging. The main characteristic of a successful trade mark is that it serves as a source identifier and badge of origin for the product, meaning that the consumer should readily associate the ‘brand’ of product with the proprietor thereof. For instance, if I say Pokémon, you will, hopefully, say Nintendo. That is a successful trade mark.
Nevertheless, it is not just the title of the video game that can function as a source identifier. Further examples would include popular fictional characters that make up and live the game story. Although fictional characters, as well as other in-game creations, are protected as copyrightable works, it is also possible to protect such in-game creations in terms of trade marks, if such creations are considered source identifiers or used in relation to marketing or merchandise. Practically illustrated, if one considers the Mario Bros. franchise, a number of the characters, such as Mario and Luigi, and their likenesses form the subject of a number of registered trade marks globally, as such characters are used in the marketing of the franchise, as well as being used in relation to clothing and toys. They are, therefore, also considered as source identifiers, as consumers would associate Mario and Luigi with Nintendo.
A number of elements that make up computer software, and specifically video games, fall within the scope of copyright protectable works. These include the source code itself, as well as the output of such source code. The output could be artistic works, such as the characters or terrain seen during the gameplay; the musical score or sound effects of the video game; or literary components, such as the story, to name a few.
While having to identify all of the protectable works present in a video game may seem daunting, it is important to note that copyright vest automatically, which means that no registration is necessary before the copyright owner may enforce these rights.
Although navigating the subject of IP protection in the realm of video games can be challenging, especially when it relates to the protection of in-game characters and creations, video game developers should not be discouraged from enforcing their protected creations through trade marks, copyrights or both, where applicable.
While it can be difficult to identify all the different types of copyright protected works present in a video game, as well as navigating the world of trade marks, it is important to know what these are and how they can be utilised, so that video game and software developers can effectively protect their rights, as well as fully commercialise their creations.
Von Seidels is an intellectual property law firm specialising in patents, trade marks, copyright, designs, trade secrets, licensing, and related areas of IP throughout Africa. Based in South Africa, Von Seidels also has offices in ARIPO (Namibia), OAPI (Cameroon) and Nigeria.