In today’s world of video games, where creativity meets technology, no one creates in a vacuum, and at the same time, “everything has already been invented,” understanding intellectual property (IP) laws and their role in the video game industry is essential.
Video games, from a legal perspective, are quite complex, carrying significant risks of infringing on others’ rights, which can have a real impact on a game’s market launch and its potential for sales. As this is a topic we deal with on a daily basis, we plan to dedicate several blog posts to the subject of IP clearance in video games. But we’ll start with the basics: what does IP clearance actually mean in the gaming industry, and why is it so crucial in the game development and publishing process? Let’s break it down with examples to help illustrate the process.
What Legal Aspects Are Involved in Video Game Production?
Video game productions usually involve the contributions of many people, such as programmers, graphic designers, writers, and various other artists, including composers and voice actors. The works of these individuals are protected from unauthorized use by intellectual property laws.
Often, video game creators draw inspiration from the surrounding world, pop culture, and current events. This is particularly relevant when developers and publishers want their titles to be as realistic as possible, while still being creatively grounded in our everyday reality.
From a legal standpoint, before starting production and launching a video game on the market, it’s crucial to establish and verify the legal ownership of all intellectual property rights associated with the game. This leads us to the heart of what IP clearance in video game production is all about. Failing to complete this step can result in serious legal issues, delays, and additional costs for the production. Not to mention, disappointed players.
Which Intellectual Property Rights Matter in Video Games?
Legally speaking, video games are complex products that encompass and combine various aspects of law, including different types of intellectual property rights.
From the perspective of IP clearance, special attention needs to be paid to game elements that are protected under copyright law, as well as trademarks.
We won’t explore every aspect of intellectual property, but it’s important to highlight that video games are primarily protected by copyright laws, especially when elements of the game are treated as creative works, adaptations, or subject to related rights.
For example, the following elements of a video game are covered by copyright:
- Game Code: Both source code and object code, including scripts and algorithms that define the function and mechanics of the game.
- Graphics and Visuals: Characters, images, textures, backgrounds, objects, 3D models, and animations.
- Music and Sound: Original musical compositions, including the soundtrack, sound effects, and voice recordings.
- Dubbing and Other Performances: Such as motion capture or other artistic performances.
- Story and Script: Especially original texts and dialogues used in the game.
Each of these creative elements belongs to the creator – or the studio that has acquired the rights from the creators it has employed or contracted – and using them (such as copying, modifying, adapting, or distributing) without the owner’s permission constitutes copyright infringement and can lead to legal claims or actions.
Trademarks also play a significant role in the video game industry. In this context, trademarks can include:
- Studio logos or the logos of game series or titles.
- The game’s title (in its verbal form).
- Character names.
- Other distinctive elements from the game world.
As registered trademarks, these game elements are legally protected, granting the rights holder exclusive use, preventing others from using these marks without consent. Trademarks are a highly effective form of protection, as industry experience shows that they have frequently led to games being blocked from entering the market.
In conclusion, IP clearance is a crucial step in video game production, ensuring that all intellectual property is properly secured and that the game is free from legal complications upon release.
What is IP Clearance?
IP clearance aims to identify, analyze, and secure intellectual property rights related to a given project. In this case, the project could be a video game, and that’s exactly what we’re addressing in this post.
A typical IP clearance involves examining potential copyright and trademark infringements, and sometimes even patents and other aspects of intellectual property, during the production phase before the game is released.
A properly executed IP clearance process ensures that video game producers and publishers do not infringe on the rights of other parties (competitors or other right holders) and that their own creations are appropriately protected.
In simpler terms, IP clearance is the process of determining whether intellectual property laws and potential third-party IP could pose a problem for your new projects, especially whether they might block the commercial success of your new video game.
Why Do IP Clearance in Video Games?
To put it very simply, and for dramatic effect, one might say that IP clearance in the video game production process is done to reduce the risk that, due to a game, its creators and publisher will become the losing defendants in a lawsuit for intellectual property infringement, and that the game will be withdrawn from the market.
In reality, the issue is much more complex, but legal risks and the legal safety of video game production do play a significant role. The following is a summary of the reasons and examples why video game producers and publishers invest in the work of lawyers who conduct so-called IP clearance during the video game production process.
- Avoiding Legal Disputes
Game creators who fail to conduct thorough IP clearance may expose themselves to serious legal consequences. Infringing on copyrights or trademarks can lead to costly lawsuits, or even a ban on distributing the game.
Imagine creating a game with a character resembling a popular hero from a competing production, carrying the same or a very similar name, which is also registered as a trademark. Without proper diligence and checking these details, you might face a lawsuit from the competition or have your game blocked.
The IP clearance process helps identify such issues before the game hits the market, allowing you to avoid expensive disputes with the owners of the rights you might be infringing upon.
- Protecting Your Investment
The process of creating a video game is a significant undertaking, often involving large financial investments.
It’s worth knowing that IP clearance can be a tool for safeguarding your creativity and the investments tied to it.
This is achieved by minimizing legal risks and securing the rights to various game elements, as well as the game title itself.
In case of later disputes, well-documented IP clearance procedures and their progress can be crucial for defending your rights and pursuing any claims.
- Increasing Attractiveness and Value of the Project
A well-protected game becomes more attractive to publishers and investors.
Creators who invest time and resources in IP clearance can expect greater interest from publishers.
Investors prefer to support projects that are legally safe.
When you present a project that has gone through IP clearance, you show that not only are you creative and hardworking, but you’ve also taken care of the legal aspects. This makes the project more appealing and secure, increasing the chances of securing funding and releasing the game.
- Building a Brand
In the video game industry, branding is key. The IP clearance process allows you to create and protect your game’s unique identity.
If you have a distinctive game title or logo, make sure you’ve registered them as trademarks with the appropriate authorities and classes.
The same goes for unique characters, visual elements, or even slogans used in the game.
These actions not only protect your ideas and build your brand, but they also help establish trust with players.
- Managing Risk
IP clearance is also a way to better manage the risks of your project.
Identifying potential issues and keeping an eye on the market, as well as competitors’ actions, allows you to adopt the right strategy leading up to the game’s release.
For example, if IP clearance research reveals that elements in your game could potentially conflict with third-party rights, you’ll have time to modify the project and address the legal aspects accordingly.
Real-Life Examples
Game Title as a Third-Party Trademark
Imagine a studio working on a game called Super Speed Racer. Without conducting IP clearance, they prepare for the release, only to discover just days before the planned launch that the title has already been trademarked by another company from gaming industry.
This quickly leads to the game being blocked from being sold on Steam and other digital distribution platforms and the need to change the title.
Which also means delaying the release date, incurring additional production costs, and spending more on marketing efforts, as well as suffering reputation damage.
IP clearance could have prevented this problem by identifying the existing third-party rights to the game title well in advance of the planned release.
Character Based on a Real-World Person
Another example could involve a game where the developers decided to create the main character based on a very famous actor, making several references to this person and his distinctive features.
The game is released without obtaining the proper agreement or permission from the actor.
Upon hearing media reports about the game, the actor is suing for infringement of his image rights, leading to hefty damages, but also the need to withdraw the game from the market.
A properly conducted IP clearance process could have helped secure the necessary permissions from the actor or prompted the developers to change the concept of the main character, thus avoiding this situation.
IP Clearance – conclusion
The role of IP clearance in the video game creation process cannot be overstated. Securing intellectual property rights helps avoid legal disputes, protect investments, and build a strong brand.
In an era of globalization and increasing competition in the video game industry, paying attention to legal aspects is becoming a key part of the development strategy.
Understanding and implementing IP clearance processes is an investment that will benefit both creators and investors, providing a solid foundation for future success.
We will continue to discuss the details of the IP clearance process in the video game industry in future posts.
Photo by Nikita Kachanovsky
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Trademarks in your GameDev Studio – where are they and are they worth registering?
Trademark registration is a milestone in the development of your studio. There are plenty of potential elements that are suitable for registration. From logos to game elements (characters, sounds) to the titles of your productions.
However, it is also worth knowing how the fact – that elements of other people’s games are registered as trademarks – affects the possibility of being „inspired” by them. In a word, can you use other people’s trademarks at all? For example, is it possible to base your own game on the character of Geralt of Rivia (who is a registered trademark)? [Read more]
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Polska wersja tego artykułu: Czym jest IP clearance i dlaczego jest ważny w grach wideo?
