Intellectual property in the gaming industry

Intellectual property in the gaming industry

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30 August 2023

The gaming industry has come a long way from its humble beginnings of pixelated graphics and simple gameplay to today's highly immersive virtual worlds and complex narratives. The Belgian  game development company Larian Studios had already made a name for itself with the Divinity series, but with the brand-new Baldur's Gate 3, the studio has a mega-success on its hands. Behind this development and the success of game developers in general lies a crucial aspect: the protection of intellectual property (IP). In this short article, we explore the complex relationship between IP and the gaming industry, examining the importance of IP protection, the challenges it faces and its impact on the industry's creativity, innovation, and overall growth.

Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, designs, and brand names and logos used in commerce. It is an essential aspect of the gaming industry and encompasses a wide range of components. The creation of a game involves various artistic and creative elements, such as character designs, music compositions and game scripts, and copyright protects these aspects from unauthorised reproduction, distribution and adaptation. Iconic game titles, logos and characters are often registered as trademarks to identify the origin and to protect the quality and the reputation of the game. In effect, trademark protection prevents consumer confusion and protects the name or logo against unauthorised use. Although less common in gaming, patents can cover innovative game mechanics, hardware technologies and other technical advances that ensure technical improvements (such as in controllers or VR headsets). The trendy field of computer-related inventions opens up a wide range of possibilities for effectively protecting game concepts. And finally ancillary aspects such as trade secrets, i.e. proprietary formulas, algorithms or business practices, can also provide a competitive edge.

IP protection stimulates innovation in the gaming industry, as developers and investors are more likely to invest time and resources in groundbreaking ideas if they know that they will be able to enjoy the resulting profit and have the tools to ward off copycats. Moreover, the tax incentives provided by IP - although criticised by some - allow new and sustainable industrial development to take place. The gaming industry is a growing contributor to the global economy and according to the World Economic Forum, in 2020, the global gaming industry’s revenue hit 150 billion euro with no less than 2.7 billion gamers worldwide. IP protection ensures that developers, studios and publishers can monetise their products and drive economic growth. IP protection encourages creative expression, as developers can build on established IP rights to create new stories, characters and experiences that enrich the gaming landscape.

But there are challenges even if IP rights are in place. The ease of digital distribution exposes games to piracy. Developers often struggle to combat the unauthorised distribution and sale of their games. Game assets, such as character models and textures, are often stolen and reused in other projects, making it difficult to maintain the integrity of a game's unique identity. The global nature of gaming also complicates IP enforcement, as legal frameworks and regulations vary from country to country but for the IP rights to be effective, it is important for IP right holders to demonstrate that they are willing to enforce their rights in court.

Another difficulty is the balance between protection and fan-created content, which is fairly complex. While fostering a fan community can be beneficial, unauthorised use of copyrighted material can also infringe intellectual property rights.  New challenges also emerge as virtual reality and augmented reality technologies gain momentum. The monetisation of in-game purchases and micro-transactions focuses attention on the ownership and protection of virtual goods, skins and token, but the ownership of virtual assets and interactions in shared virtual spaces raises other issues for which there is no clear legal framework. Also in this context, there is the difficulty that many games embrace user-generated content, allowing players to create and share such content. Developers need to strike a balance between encouraging creativity by the gamers and protecting their own IP, and they need to find the most appropriate legal framework for doing so. It appears that the success of Minecraft is partly due to its community-driven content creation, and the fact that developer Mojang has managed to protect its IP while allowing players creative freedom.

On the other hand, developers themselves should also realize the danger of using third party IP. Fortnite's emote dances (allowing the player to have their character act out a dance move) led to debates about IP infringement. Celebrities and artists claimed that their dance moves had been used without their permission, raising questions about the liability of game developers, alleged infringement by gamers, and even the protectability of simple dance routines. Note that former soccer player Edgar Davids has been proven right by the Amsterdam District Court in that in the computer game League of Legends the game character Striker Lucian looked very much like him and that, as an ex-pro footballer, he has an interest in preventing free use of his portrait right. Similarly, Game company 3D Realms has changed the name of its retro shooter Ion Maiden to Ion Fury following claims of trademark infringement by metal band Iron Maiden.

In summary, the relationship between intellectual property and the games industry is multifaceted. IP protection is central to fostering innovation, ensuring economic growth, and preserving creative expression. As the industry evolves with new technologies and new business models, addressing challenges such as piracy, asset theft and fan creations will remain paramount. Striking the right balance between protection and freedom of creation will determine how the games industry continues to thrive in the ever-expanding world of digital entertainment. To ensure that creative success is adequately rewarded, it is essential that game architectures, their respective components and the business strategy are aligned with the current legal framework and are adequately protected. For the assessment of suitable IP protection and legal implications of gameing, both the gaming industry and the gamers are very welcome to contact us at

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