The gaming IP minefield – different rights and different jurisdictions

In advance of its IP and Games event on the 26th of June – Paul Gardner, partner at Wiggin gives an overview of the IP rights issues for the games industry.

Since its introduction almost 30 years ago, the Humvee has seen action in numerous conflicts around the globe. However, at the end of last year it became involved in a rather different conflict, when its manufacturer, AM General, commenced proceedings against Activision in respect of the appearance of Humvees in the Call of Duty series.

This is just a recent example of what has been a growing number of disputes relating to the use of real world objects and representations in games, including cars, aircraft, guns, buildings and brand names. Even the depiction of tattoos on basket ball players is the subject of an ongoing claim for copyright infringement. Of course, as in any area of commercial life, the claims that end up in court are just a small proportion of the total number of legal scuffles that take place over these kinds of issues.

There are two obvious reasons for the growth in these disputes. The first is the advances in technology that has enabled games to achieve realism of cinematic quality. The second is the growth in size and prominence of the industry and the correspondingly large amounts of money involved.

You don’t have to dig into these issues for long to discover that the legal positon is not as clear as might be expected or hoped. To begin with, several different intellectual property (IP) rights are involved, including copyright, moral rights, registered designs and trade marks. Applying these to the use of objects and representations in games is then not straightforward. To further complicate matters, the position in relation to a particular issue can differ a lot between different jurisdictions.

As games have started to include more real world content, then a game development project can involve a huge process of clearances and licence agreements. Not only has the scale of this task increased but also the complexity. For example, when games were simply distributed as boxed products, then the distribution channels involved were very clear. However, as games have moved to a DLC and service model, so a licence needs to anticipate how a game will be used and distributed in the future so that this can be properly reflected in the scope of rights. This can be particularly challenging with music, given the way that music rights are owned and administered and the involvement of collecting societies.

Even companies with deep resources to deal with clearance and licensing programs are not immune from problems. There are many examples of individuals in development teams including material that they may think is fine, but when included in the game creates an IP or related problem. Making sure that the creators are alive to the key issue and know when to ask a question is therefore an important part of any IP strategy.

But clearing and licensing IP and avoiding infringements is just part of the picture. Every games business will in one way or another need to develop and protect its own IP. This is not just about tackling infringements. As anyone who has been involved in the process of raising investment or selling a business knows, IP protection is a key focus for any investor or buyer and will have a material impact on price, and sometimes even whether a transaction happens at all.

On many occasions, things that go wrong could have been avoided at an earlier stage with a lot less time and expense. As the saying goes, a stitch in time saves nine.

On the afternoon of Tuesday 26 June, law firm Wiggin is running an intensive half day event exclusively for games companies covering all of the key IP issues involved with the use of content in games. You can find booking information here and the full agenda here.

About Seth Barton

Seth Barton is the editor of MCV – which covers every aspect of the industry: development, publishing, marketing and much more. Before that Seth toiled in games retail at Electronics Boutique, studied film at university, published console and PC games for the BBC, and spent many years working in tech journalism. Living in South East London, he divides his little free time between board games, video games, beer and family. You can find him tweeting @sethbarton1.

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