July 24, 2023

Patent Attorneys Are Gamers Too


In February this year, I joined the growing number of independent video game developers (indies) out there who has released a game to the public. While it may not be the next Vampire Survivors or Assassin’s Creed, it’s an achievement that I am proud of, and met (most of) the personal goals I set out to achieve.

The game development industry is in a really interesting place at the moment, as is software development in general (heard of ChatGPT?). In light of this I wanted to share my thoughts and advice for game and software developers, particularly when it comes to intellectual property (IP).

This article is the first of series of articles which will cover off some of the key IP considerations for game and software developers. This is an area where there are relatively few resources available online, and even fewer which are specifically tailored to game or software development and the specific needs of these industries.

The Basics  

Before we start diving into the detail of how IP is used in these industries, it is important to understand the types of IP protection which are available, and what they are typically used for. My intention here is to cover each of these topics in more detail in later articles, but at a high level:

  • Copyright is a legal right which is automatically provided to authors of original creative works. This covers everything from the code, the graphical assets, characters, audio, voice lines, story elements, visual effects, environments as well as the game itself.

Copyright is a mechanism which can be used to prevent someone from copying your game or software. However, it does not protect against others coming up with similar creative works independently, i.e. without directly copying your game/software.

There are a lot of considerations here that I will cover in subsequent articles, but at a high-level it is important to understand who owns the copyright, whether fair-use applies, what to do if you think someone has copied you, whether you can copy features from others, whether you should register your copyright in the US, and whether AI-generated works can have copyright to name just a few of the issues.

  • Branding – Including registered and unregistered trademarks. Trademarks are the elements of your software which let customers know that it belongs to you. It includes things such as the name of the game/software/studio/publisher/game series, including the stylisation or presentation of these names, characters (such as Mario, Master Chief, Kirby etc.), sound effects, and even colour schemes.

Again, there are a number of considerations here, including whether you should register your trademarks, what the benefits are, which countries to register in, what the costs are likely to be, and how trademarks are infringed and enforced, what makes a good trademark.

  • Patent Protection – Patents cover the way which something works. This can include the underlying technologies used, including the software, game mechanics, gaming hardware and peripherals, AI, VR, AR, XR, blockchain and NFT technologies, to name just a few.

While patents are one of the strongest forms of protection you can get for your IP, in the software and gaming space they are also one of the hardest rights to get granted and are typically more expensive than the other options.

Other Things You Will Need to Know

While copyright, trademarks and patents make up some of the core pillars of a good IP protection strategy, there are a lot of other things you will need to keep in mind as a game or software developer such as:

  • Licensing and attribution – Or can you use that third-party asset in the way you intend.
  • Privacy and the need to protect user data – not to be ignored, as there can be hefty fines for those who break the rules.
  • Game rating systems – what ratings are required in certain markets.
  • Employee, contractor, revenue share, publisher, and licensing agreements.
  • Marketing – arguably the final boss when it comes to commercial success.

Closing Thoughts

If you are working on a project at the moment, and you have burning questions regarding any of these topics, please don’t hesitate to reach out. We are gamers too and would love to hear more about what you are working on.

Otherwise stay tuned as we dive into some of these topics in more detail, and I share some of the lessons learned from my own personal game development journey.

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