More than just a game – IP considerations for game developers

What are the commercial assets in your game

Let’s consider an example of the greatly anticipated (even by those non-gaming of us) game coming out later this year – the GTA VI. Behind the better graphics, enlarged playable open world and new soundtrack for cruising in the digital car, the game is filled with copyrightable elements. Any written content, artwork, music, character design, sound recording, film, and the underlaying line of code, will be a separate intellectual property asset, and all of these were certainly given much consideration by Rockstar Games.

Similarly, anyone who develops a game needs to firstly think about all the intellectual property assets in it. Once the list is done, considerations about ownership, identifying a basis for lawful use of third-party materials (through obtaining relevant licences or arranging assignments of rights), and the ways to keep the work confidential all become relevant and fundamental to the success of your business.

Agreeing who owns the work

Paying someone to create a bespoke soundtrack or design the characters in your game does not, by itself, transfer copyright ownership in those works. The author of artistic, musical and literary works is generally the first owner of them, and in order to secure the rights in the commissioned product an appropriate licence or assignment of copyright needs to be drafted.

The distinction between a licence and an assignment is that a licence gives the licensee permission to use the work subject to certain, agreed conditions and restrictions, while an assignment transfers the full ownership of the copyright from the author to the developer. Deciding which one is more suitable depends on the unique circumstances and is a must-have conversation for founders, as well as any freelance artists, composers and programmers involved in the project development to ensure transparency regrading copyright ownership as early as possible.

Obtaining licences for third-party content

Consider any third parties who may supply any elements which are intended to be part of the game, including the use of known songs or characters. The use of such third-party content will usually be subject to their standard T&Cs. As copyright owners control activities such as the reproduction and adaptation of their protected work (subject to some statutory exceptions), using someone else’s content for commercial purposes, such as developing a game, would almost certainly require a licence.

For any royalty-free audio and music, asset packs, fonts, plugins or open-source code, check the applicable T&Cs, and consider whether:

• commercial use is allowed;
• the licence covers your intended platforms and distribution;
• you can modify the material; and
• credits, notices or source-code disclosures required.

Never assume that “free” means that unrestricted use is allowed, or that buying an asset transfers full ownership of the copyright in that asset (it usually doesn’t).

Keeping confidential information confidential

Even though it may make more sense for Rockstar Games to care about keeping their game and anything surrounding the release confidential, confidentiality and trade secrets are something that any game developer should keep in mind. For a trade secret to remain legally protected and enforceable, it must

(unsurprisingly) be kept secret. In addition, maintaining the confidentiality of a trade secret is important if it is to have any commercial value as an intellectual property asset (because it is secret).

There is no one way which guarantees confidentiality. However, some of the actions worth incorporating into your daily routine are restricted access, putting in place appropriate NDAs, and a clear process for removing access when collaborators leave.

Patents

Although UK law excludes patent protection for computer programs and game rules “as such”, patents can still protect qualifying technological inventions used in video games, including those implemented through software. Ultimate protection afforded by patents however requires the applicant to satisfy three strict criteria: novelty (the invention must be new), inventive step (the invention must not be an obvious extension or improvement to existing technology) and industrial applicability.

Excitingly, and serving as an example of patentable in-game technology, Take Two Interactive Studios also known as the Rockstar’s parent company, successfully obtained a patent concerning the artificial intelligence capabilities of non-player characters (NPCs). Despite Take Two’s patent dating back to 2021, we are yet to see whether this technology will amuse the players of the GTA VI. As is the case with Rockstar, but also with patents, confidentiality and anticipation is everything.

User generated content

From custom skins and player-built worlds to mods, players can become creators as well as consumers. Developers should be mindful that they must have T&Cs, which address ownership of those contributions, and the licences needed to host, modify and share them. Those same terms should also address the incorporation of third-party material, supported by reporting and takedown procedures for alleged infringements and, of course, inappropriate content (as is the Internet’s way of being). Privacy considerations arise where contributions include identifiable players’ images, voices or other personal information, and all multiplayer and MMO platforms should build in appropriate privacy notices, lawful grounds for processing, proportionate retention periods and safeguards for children.

Protecting your brand

Finally, the game itself is not the only thing able to hold commercial value and attract IP rights. From the company’s name and game title to logos: these are all some of a developer’s most important and valuable assets, and they may be protected by trade marks.

A registered trade mark can help protect the brand’s identity, which players come to recognise, but it also grants an ability to challenge competing brands that are likely to cause brand confusion, blurring, dilution and tarnish. Choosing a distinctive name, checking whether it is available, and securing protection early is necessary to build that unique identity on a firm foundation, rather than face a costly rebrand down the line.

Briffa can provide advice in relation to all of the above rights and tailor it to your game development needs. We can also help you with the IP strategy for your next best-selling game, so that protecting your IP never becomes a side quest. Contact Briffa’s IP solicitors at info@briffa.com and we will be more than happy to assist you.