ATTENTION DIGITAL AND BOARD GAME DEVELOPERS!
One area of practice that I particularly enjoy is helping game developers secure their intellectual property rights. The gaming industry is interesting from a legal perspective particularly because it involves the three main areas of IP protection: trademarks, copyrights and patents.
It is well established that games of chance are generally not subject to copyright protection since the actual mechanics of the game in itself have been held by the courts to be merely an idea. It is oftentimes difficult for non-lawyers to grasp the fact that IDEAS are not subject to copyright protection.
Regardless of whether the objective of the game is a mere uncopyrightable “idea,” the actual theme of the game can be subject to copyright. For example, if a game is about flying unicorns, all the graphics and the story line embodied in the game can be effectively registered in the Library of Congress. Fortunately, the theme is often what makes the game popular. Its creativity can transform into multiple forms of digital gaming, opening up additional revenue streams such as merchandising. All of this creates multiple intellectual property assets.
It is very important to ensure that certain aspects of any game are trademarked. For example, the name of the game is subject to trademark provided it is distinctive, as well as some of its visual design aspects. In fact, coming up with a logo and design that are particular to your game is an excellent way to obtain trademark protection.
Obtaining a patent is more complex in the gaming industry. However, because of the protection that is afforded with trademark and copyright, patents are often not necessary to protect the creation. But, if the game has been primarily developed as a digital gaming platform, or if the game relies on a novel technology, patents can potentially afford a much larger scope of protection provided the game itself is novel — for example, embodying a newly developed algorithm. A prior art investigation is mandatory to show that the new game is completely different than any other game previously developed — one that is completely out-of-the-box (pun intended). We suggest contacting an experienced patent attorney to determine whether a patent application is the right choice for protection.
Launching your product
It is very common in this industry to look to crowdsourcing to fund the production and development of games of chance. We strongly advise that before spending time and money in these campaigns (or allowing third parties to get to know the game through social media), game developers dedicate a portion of their budget to consultation with an attorney regarding intellectual property protection and potentially seek registration if available. Copyrights, trademarks, and patents are all valuable assets for your business.
We are here to help you as your legal counsel for your intellectual property needs in whichever phase of game development you are in.