IP & Video games: Lots to protect

“Most video games entrepreneurs think about copyright or trademarks, and many don’t realize that IP protection in this sector can extend much further, such as, patents for technical systems, trade secrets for backend tools and data, design rights for interfaces, and contracts governing AI tools, user-generated content, vendors, and platforms.” — Gurbir Sidhu

In the intellectual property context, a video game is unique: rather than being a single piece of IP, it comprises a bundle of IP rights combined into a single product. From the perspective of copyright alone, video games contain more copyrightable elements than almost any other medium.

That explains two things: why attorneys (or more likely, a team of attorneys) who work with video games must see IP in a broad context; and why video game entrepreneurs may have a limited perspective on the IP rights involved.

“Most video games entrepreneurs think about copyright or trademarks, but many don’t realize that IP protection in this sector can extend much further, such as, patents for technical systems, trade secrets for backend tools and data, design rights for interfaces, and contracts governing AI tools, user-generated content, vendors, and platforms,” says Gurbir Sidhu, a computer science engineer turned lawyer in the Toronto office of Smart & Biggar, a member of the IPH network.

Indeed, the IP rights associated with video games are an amalgam of:

Copyright, which protects original creative expression including story, dialogue, and characters; artwork, textures, and user interfaces; music and sound effects; cutscenes; source and object code; and level design;
Trademarks, which protect brand identity including titles, studio names, logos, character names that are used as brands, and distinctive symbols and sounds associated with a game;
Patents, which protect game mechanics and technology, including novel gameplay mechanics, networking systems, rendering techniques, controller characteristics, and virtual as well as augmented reality features;
Industrial designs, traditionally used in the video-game sector to protect the way hardware looks and feels, especially specific forms of controllers and gaming consoles. “Nintendo, for example, has a distinctive look that leaves no doubt what you’re looking at even before you see the logo,” Gurbir says; and
Trade secrets, which may include proprietary engines, internal tools, balancing algorithms, server-side logic, monetization systems, and development pipelines.

“So the video-game lawyer needs to segment all these different elements and fit them into the right categories of protection, depending on whether they will be used in multiplayer, creator, esports, or VR/AR environment. One way of doing that is preparing an IP map for the clients by asking the right questions and demonstrating what can be protected and how, including overlooked assets such as anti-cheat systems, player telemetry, moderation tools, and live-ops decision systems that may be just as valuable as the game’s visible content.”
Gurbir Sidhu

The layered approach

More sophisticated video game developers have what Gurbir calls a “layered” approach to IP.

“They’re not just thinking about the exterior of the product or what the gameplay will look like and but also about the systems underneath it, how the game is built, personalized, monetized, and operated over time.”

As it turns out, the development pipeline is an arena where IP assets are commonly overlooked.

“There could be value, for example, in proprietary algorithms and game engine modifications, dialogue class interactions [the structured way characters communicate with players or each other within the game], version control tools, certification checks, and anti-fraud systems. Those assets may not be visible to players, but they can be critical to how a studio scales a multiplayer world, protects an in-game economy, improves live operations, or differentiates its gameplay experience,” Gurbir says.

Other issues: privacy & contracts

There are also privacy considerations.

“Video games collect a large amount of user data, and the rules governing collection and use of that data might conflict from one country to another,” Gurbir explains. “Those conflicts can arise even where video games use disclaimers.”

And because multiple third parties are often engaged by smaller developers, legal expertise in contracts also comes into play. For while IP protects the creative output, contracts protect business relationships and fill the gaps that IP law can’t protect.

“If you’re talking about protecting end-to-end new architecture, you need a combination of IP and contract skills,” Gurbir says.

More particularly, contracts like end-user licensing agreements, general licensing agreements, and non-disclosure agreements can fill the gap by protecting game mechanics and rules; ideas and concepts; application programming interfaces and functional code; raw data and player statistics; and assist in deterring cheaters and mods (user-created alterations to games that change or add to the original content).

Personality rights & trade secrets as well

IP protection also intersects with personality rights—and exponentially so with the emergence of AI, which can generate voices and likenesses without actually copying photographs or recordings.

“Trademark and copyright protections may not in themselves provide enough clearance,” Gurbir says.

Issues relating to AI governance are also likely to arise.

“AI governance is increasingly being shaped by legislation, court decisions, platform rules, and contract terms, as AI becomes embedded in more commercial products,” Gurbir says. “Those rules may, among other things, require developers to explain how AI is being used in their games, dictate whether and to what extent AI models can be trained on user or gameplay data, and set out rules regarding confidentiality, consent, and reuse of that data.”

Another level of inquiry investigates the trade secret perspective.

“For example, not everything in gaming architecture can or should be patented,” Gurbir says. “There might be greater value in keeping some things secret, especially where disclosure could make it easier for competitors to replicate or work around the system.”

Enthusiasm counts

Finally, Gurbir says, good video game attorneys should be gaming enthusiasts.

“One of the most important skills is understanding where a game’s commercial value and player attraction actually sit, and how those assets may evolve over time,” he says.