An introduction to intellectual property in the games industry

The games industry is the fastest growing sector of the entertainment industry, with an estimated 37.3 million people playing video games on a PC, console or mobile in the UK.

As game companies are constantly seeking to innovate to stand out from an increasingly crowded market, developing a well-defined and proactive IP strategy to secure appropriate IP rights is essential to their success.

While the traditional giants of the industry are usually familiar with IP, many smaller teams and independent developers are unaware of its importance in safeguarding their business interests. However, regardless of size, all developers should have a basic understanding of what their IP rights are.

Having registered IP rights adds value and makes it a more attractive prospect for possible investors

Why IP is so crucial for developers

Developers invest a significant amount of effort, time and money into their projects, and it can often take them several years to design and launch a new game. Protecting distinctive elements such as game titles, characters and design is crucial to enable them to reap maximum commercial reward and prevent other people from trading off their ideas and reputation by releasing games using similar features.

If creators want to sell their game or company to one of the industry giants, having registered IP rights also adds value and makes it a more attractive prospect for possible investors, as well as allowing the potential for them to open up new revenue streams by licensing the right to use their registered IP rights to a third-party.

Which types of IP are most prevalent in the industry?

The most relevant rights within the gaming industry are copyrights, patents, trademarks and industrial designs.

• Copyright

Copyright guards the creative expression that goes into a video game and is an automatic right that can apply to original literary, musical and artistic works. This could include the code, soundtrack, characters or storyline from a game, and the protection it provides helps prevent the duplication of such elements.

• Patent protection

Patent protection extends to the hardware or technical solutions along with the inventive gameplay involved in a game. This type of intellectual right protects technical characteristics, meaning no other entity can introduce into the market any product or process with technical characteristics similar to the product or process covered by the patent right.

In some parts of the world it is also possible to protect aspects of game engines, although the industry has typically frowned upon such protection as being contrary to the usual behaviour in the sector: many believe that the aspects of game engine should be available to be used by others to build upon.

• Trade marks

Trade mark registrations can be used to protect the names and logos of gaming companies and products. The object of a trade mark is totally different to that of a patent and is the legal protection of a distinctive sign used in commerce to identify goods and/or services. This sign may be a word (or words), logos or other signs used to identify.

• Industrial design

Industrial design, usually simply referred to as 'designs', protect the appearance of a particular product. These rights do not protect any technical functionality, but only external features such as lines, contours, colours, shape, texture and / or materials of the product and its ornamentation.

The holder of a design has an exclusive right to commercially use a product with a specific appearance, regardless of product type. These registrations make it impossible for any other entity to profit without consent from any product with the appearance of the subject covered by the design registration.

How developers can protect their IP

For game developers, the first step in protecting their intellectual property is to recognise what kind of IP rights they or their company may have. Whilst in an ideal world they would protect all the various kinds of IP that apply to their games and company, funding can be limited for many in the industry and advances in technology can happen rapidly, both of which can pose many obstacles.

A qualified and reputable intellectual property lawyer will be able to help evaluate what aspects of their IP a developer should protect and when. They will consider factors such as the developer's business objectives and which core IP assets will be most important for development and commercialisation purposes, as well as if a developer has IP that is time sensitive, such as patents and industrial designs.

Coming up with a strategy that works for a specific game is crucial, and timing can be very important, as each of the various types of intellectual property has ramifications for not taking action by a certain time. Speaking with counsel about creating and implementing the strategy should be part of any game development process. The video game industry is constantly evolving creatively, technologically, and commercially, and the wealth of innovation involved in each gaming experience and the IP surrounding it can come with many challenges and difficulties.

For developers, having appropriate IP protection in place should be a priority if they want to establish a fundamental edge against all competition, and can mean the difference between reaping the financial rewards of developing a game and seeing all their hard work lost to others in the market.

By taking the time to understand the relevant forms of IP, seeking qualified legal counsel and putting protection in place at the earliest opportunity, developers can harness the full economic potential of their creations and position themselves well to take advantage of a multibillion-pound industry.