6 mins

Intellectual Property in Gaming

The journey of an indie game developer is filled with challenges regarding intellectual property (IP) rights infringement...

The journey of an indie game developer is filled with challenges, and one significant hurdle they may encounter is the infringement of their intellectual property (IP) rights.

A poignant example of this occurred in 2019 when the founder of the highly popular game Clicker Heroes shared a distressing ordeal on Reddit.

Their game was removed from the app store by Apple, not due to any wrongdoing on their part, but because a company in China had created a clone, trademarked the already-used name, and successfully convinced Apple to take down the original game worldwide.

The consequences were severe, with the developers losing hundreds of dollars per day.

This incident serves as a stark reminder of the critical importance of safeguarding one's intellectual property rights.

In this article, we will explore the realm of intellectual property in the gaming industry, shedding light on its various aspects, potential consequences of infringement, and the actions that copyright holders can take to protect their creative works.

What is Intellectual Property in gaming?

Per the  World Intellectual Property Organization (WIPO), intellectual property:

“…refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce."

In gaming, intellectual property encompasses a wide range of creative works that developers produce during the game development process, such as:

  • Character designs
  • Music
  • Storylines
  • User interfaces
  • Character names
  • Logos.

Note that this list is non-exhaustive. As technology advances, the scope of intellectual property continues to expand and evolve.

When will infringement occur?

In the gaming world, copyright infringement occurs when a substantial portion of an original work is copied without permission.

To prove independent creation and defend against infringement claims, the alleged infringer must provide evidence that their work was not copied from the original.

Let's explore a hypothetical situation to illustrate this.

Meet Alex, an indie game developer who creates a game called Examplemon, which Alex holds exclusive rights to reproduce and distribute.

However, without Alex's permission, another developer named Ben copies parts of Examplemon and sells it under a different name, Example Quest, without giving credit or compensation to Alex.

In this case, Ben has infringed on Alex's copyright by unlawfully copying and distributing their work. Alex has the legal right to take action against Ben, seeking to prevent further infringement and claim compensation for any damages caused.

In essence, anyone who wishes to use your copyrighted work must get your permission before doing so. But this applies only if you safeguard your work with intellectual property rights.

Actions to Protect Your Intellectual Property Rights

  1. Register Your Copyrights: Registering your creative works with the appropriate intellectual property authorities can provide additional legal protection and strengthen your case in the event of an infringement.
  2. Utilize Trademarks: If you have unique names, logos, or branding associated with your game, consider registering trademarks to safeguard them from unauthorized use.
  3. Use Non-Disclosure Agreements (NDAs): When collaborating with others, such as artists, musicians, or developers, use NDAs to ensure that they do not share or misuse your proprietary information or creative works.
  4. Monitor and Enforce: Regularly monitor the gaming marketplaces and online platforms for potential infringements of your intellectual property. If you identify any unauthorized use, take prompt action to enforce your rights, such as sending cease and desist letters or pursuing legal remedies.

Steps to Ensure Non-Infringement of Others' Copyrights

Infringing another developer’s copyrights (whether it’s accidental or not) can lead to a lot of unwanted trouble for either party.

To ensure that you don’t inadvertently infringe on someone else's copyrights, you can:

  • Obtain Proper Permissions: If you plan to use someone else's copyrighted material, such as music or artwork, obtain permission from the copyright owner before doing so. This may involve acquiring licenses or entering into agreements.
  • Give Credit: Whenever you use or reference someone else's creative works, properly attribute and credit the original copyright owner. This includes giving credit for music tracks, art assets, or any other materials used in your game.
  • Conduct Due Diligence: Before releasing your game, conduct thorough research to ensure that your work does not bear similarities to existing copyrighted works. This includes checking for similar game mechanics, character designs, or storylines.

Practical Implications of Copyright Infringement

Being involved in a copyright infringement dispute can have practical implications for indie game developers. Let's explore some of the potential consequences:

  1. Resource-Intensive Lawsuits
    Engaging in a legal battle to protect your intellectual property rights can be a resource-intensive process. It often involves hiring legal representation, conducting extensive research, and investing significant time and effort, diverting resources from game development.
  2. Financial and Mental Pressure:
  3. Legal disputes can impose heavy financial and mental pressure on indie developers. Legal fees, potential damages, and the uncertainty surrounding the outcome of a lawsuit can be stressful and impact both personal and professional well-being.
  4. Risk of De-Platforming
    Infringement allegations can lead to de-platforming, where game distribution platforms or app stores take action against the accused developer. This can result in the removal of the infringing game, loss of revenue, and a tarnished reputation.

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