Video Games and its tryst with IPR
What started as a recreational activity in 1985 to keep children engaged at home, has now become a US $131 billion industry. The video games industry began with Nintendo launching its first mainstream game console in 1985 and ever since then it has only moved forward. The gaming industry is known to be one of the fastest-growing areas of the entertainment industry. The misconception that video games are supposed to be only for a child does not exist anymore. With the emergence of PlayStation and Xbox coming up with FIFA, NBA, Call of Duty and many such other games has made age be no bar for the gaming industry. This growing industry has an interesting tryst with IP laws as various segments of it are traced from ideas and thus shall, by all means, be protected from infringement.
Intersection with IPR
Video games revolve around a storyline which keeps the player engaged in the gameplay. This storyline is presented with the help of enhanced technology and gripping background music. All of this when mixed gives the user an enthralling experience.
These multiple creative elements weaving the game together become the intellectual property of the creator and thus shall be legally protected. It is essential to examine how these complex interactive works are treated in various jurisdictions. The legal approach to be adopted will have a bearing on determining critical issues such as ownership, authorship, remuneration, transfer of rights and infringement. Without the appropriate IP rights and licensing arrangements in place, developers may find it hard to distribute their game or to fully leverage the value of their work in a highly creative and cutting edge domain.[i] The various facets of IP laws which protect a video game are discussed below:
- Copyright Protection: Video games in its entirety would not enjoy any blanket protection under the Indian Copyright Act. However, different elements of the video game are copyrightable separately. For example, in the game Roadrash, where you controlled the actions of your characters by tapping the buttons on your keyboard. This feature of the game can also be protected. As the source code of the game which controls the functionality is copyrightable under the Act.
Also, artistic works such as characters of the game, the sound recordings, moving images and animations with accompanying soundtracks are copyrightable elements. Nintendo, for example, owns the copyright for the way Super Mario looks and sounds. The rules of the game, instructions and written format of the game will form the copyrightable written components.
Sometimes a creator may want to adapt an already existing copyrighted work and make a game out of it. Recently, EA Sports acquired the license for the famous franchise movie “Star Wars” from Disney, to create video games based on the movie. This falls under “derivative work” and can be secured by acquiring appropriate licenses from the copyright holder. The creator of the game will have to pay a royalty for the copyrighted work.
- Trademark Protection: The idea of getting a trademark for a product is to protect the goodwill and reputation associated with the company or video game as a brand. It helps to distinguish the brand or game from others in the market. Anyone who plays sports video games would without thinking twice recognize the logo of EA Sports and say the phrase “EA Sports- It’s in the game!” before the game begins. EA Sports had registered a trademark for this phrase in 2015. The name of the game, slogan, catchy phrase of the game can be protected by securing trademarks for each of these individually.
There are also times when the in-game scenario may have a resemblance to a real-life scenario, this could cause infringement claims. In 2019, British heavy metal band, Iron Maiden, sued video game company 3D Realms for $2 million over a first-person shooter game called “Ion Maiden” The lawsuit claimed that the game’s phonetically similar name and other similarities to the band could cause confusion among consumers. “Customers who view [the] defendant’s video game and merchandise are likely to believe that Iron Maiden is somehow affiliated with the defendant,”[ii] To avoid such lawsuits, it is always better to either seek prior permission or be creative.
- Patentability of Video Games: When the idea behind the game is established as an invention which is novel, has an inventive step and is useful it becomes eligible for patent protection. Many aspects of games and gamification can also be patented. Sega owns Patent no. 6,200,138, which is titled “Game display method, moving direction indicating method, game apparatus and drive simulating apparatus.” According to this patent, Sega has a lock on the idea of driving a car around a city with an arrow pointing towards the next destination; it’s a patent for the game Crazy Taxi.
Similarly, functional features in-game controllers and consoles; the technological components of game platforms like mobile apps, processes within a game like gameplay methods, graphics techniques, user interface communications can all be patented.
Rise of Video Game Streaming & Fair Use
The latest trend in the gaming industry is the streaming of video games. In this, any user plays a game on their console and makes it available for others to stream it. A large number of people then join that stream to watch that user play.
Juniper Research reports that e-sports and streaming video game content will generate $3.5 billion by 2021, up from $1.8 billion in 2016. There are thousands of gaming YouTubers today who go live while playing Fortnite or FIFA and have interactive sessions with their audience. Richard Tyler Blevins, who’s better known as Ninja, claims he made nearly $10 million in 2018 playing Fortnite.
This streaming of the game also forms a legal grey area. It is seen above that a game developer owns the right to use of game images and other aspects of the game via copyright law. Thus the copyright holder does have the right to restrict the streaming of their games as the ownership lies with them. Streamers have limited legal responses, with, arguably, the strongest legal defense being that the stream satisfies the Fair Use exemption. That’s a narrow rule saying that for purposes such as criticism, news reporting, teaching, and research; permission from or payment to the copyright holder is not required.
However, such restriction from the copyright holder’s end is commonly not seen as streaming of their game is beneficial to them. Streaming of video games can expand a game’s user base, drive sales, generate free publicity and foster groups of players who share their gaming experiences. Thus it is seen that many prominent video game developers have taken a middle-of-the-road approach to balance protecting their intellectual property by capturing the benefits of streaming gameplay.
Growth towards a Multi-Million Industry
According to Forbes, the economic impact of the gaming industry to the United States GDP was over 11 billion dollars in 2016 and that number is certain to grow for the foreseeable future.[iii] It is predicted that the video games market could become a 300 billion dollar industry by 2025. More and more games are shifting towards the free-to-play with optional in-game purchases, in part due to the success of games like “Fortnite.” Streaming games, also called cloud gaming, will see more growth in the future. Sony recently shared that its game streaming subscription service, PlayStation Now has increased in popularity and led to increased revenue for the company in the past year. Other companies, including Microsoft, are already developing their cloud gaming platforms.[iv]
The gaming industry is at an all-time booming phase. There are millions of dollars being invested in R&D and revenue generated is reaching billions. The Indian gaming industry has also seen the potential of this market. When a large chunk of money flowing in the global industry comes from the Indian market, investors are soon going to tap into this industry. Recently, with mobile gaming being a rising market many Indian developers have started entering this industry too. PlayStation, Xbox, Nintendo and many others have been frontrunners in India for a long time. Now as the industry grows so does the importance of the intellectual property. Video games revolve around software and computer programming thus making it susceptible to being copied by competitors. Indian law may not have blanket legislation to govern gaming laws as a whole. However, video game creators have the option to seek separate copyright, trademark and patent protection to safeguard their brands. Finally, in recent years, the gaming industry, as is the case with all technology-based industries, has seen its sales revenue sources shift from physical to digital, creating alternative methods of providing content to its consumers. As seen with the emergence of Call of Duty, Fortnite and FIFA provide platforms for interactive multiplayer sessions on PlayStation and Xbox. Thus the act of registering all intellectual rights should be regarded as the utmost priority at the start of a new project. These rights provide a fundamental edge against all competition. In this sense, given the demanding and competing facet of the gaming industry, getting there first is the surest way to victory.
[i] Anuradha Maheshwari, Intellectual Property in Gaming, Frontline (2015) http://www.lexmantis.com/pdf/May-Jun-2015-IP-Era-Intellectual-Property-In-Gaming-LexMantis.pdf
[ii] Iron Maiden screams trademark infringement over video game, Hovey Williams LLP (Jun. 11, 2019) https://www.hoveywilliams.com/blog/2019/06/iron-maiden-screams-trademark-infringement-over-video-game.shtml
[iii] Kevin Anderson, The Business Of Video Games: A Multi Billion Dollar Industry [Infographic], Forbes (Apr. 29, 2017) https://www.forbes.com/sites/kevinanderton/2017/04/29/the-business-of-video-games-a-multi-billion-dollar-industry-infographic/#638e85f76d27[iv] Liz Lanier, Video Games Could Be a $300 Billion Industry by 2025 (Report), Variety (May 1, 2019) https://variety.com/2019/gaming/news/video-games-300-billion-industry-2025-report-1203202672/