PROTECTING INTELLECTUAL PROPERTY IN VIDEO GAMES

Once the exclusive domain of basement-dwellers and geeks, video games have become a lucrative, multi-billion dollar industry.  Where gamers once had to make trips to shopping malls and arcade centers to plunk down quarters to play video games on giant cabinets, the mobile technology of today allows people to play games directly on their phones across a variety of social media.   With an estimated player base of 56 million people, social gamers are expected to spend over $6 billion on games by the year 2013.  These types of numbers are highly attractive to businesses, and social gaming is a fast-growing sector of the overall industry.  Naturally, competition is fierce, and developers often mimic the features and feel of popular games in an attempt to grab market share, a practice that dates back to the very beginning of the video game industry.

Historically, game developers haven’t devoted a substantial amount of time and resources to protecting IP, but developments in technology and law suggest the importance of a greater focus on IP rights.  A basic understanding of each type of protection, and how it could apply to a game, will be invaluable to game developers who want to maximize potential revenues from their creations.  Earlier this year, Zynga, a social network game developer that recently went public, sued another game developer, Vostu, alleging that Vostu’s games infringed on Zynga’s copyrights.  Such lawsuits are not uncommon in the social gaming industry, with Zynga itself having been sued a number of times over similar allegations.  In this lawsuit, Zynga asserted that it had obtained Federal copyright protection over various aspects of its games, and relied on these copyrights as its sole cause of action against Vostu.  The two parties settled the lawsuit, resulting in Vostu’s making a monetary payment to Zynga, and changes to some of Vostu’s games.  The settlement can be seen as a successful outcome for Zynga, and one example of why game developers should actively protect the IP in their games.

As with other types of software and technology, protection for IP in games is available in the forms of patents, copyrights, and trademarks.  Businesses tend to be the most familiar with trademarks, which are distinctive signs or marks used by a business for identifying its services or goods.  Trademarks are available at common law, State, and Federal levels, with trademarks registered with the United States Patent and Trademark Office protected across the entirety of the United States.   Because competitors will often try and mimic success, it can be to a game developer’s benefit to find a mark that it will be able to defend strongly.  Fanciful names tend to be more distinctive than descriptive ones, which means that holders of a fanciful mark will usually have greater success in preventing copycats from capitalizing on their fame.

In addition to trademarks, many games contain elements that are suitable for copyright protection.   Copyrights protect works of authorship in a tangible form, but do not protect facts, ideas, systems, or methods of operation.  Applied to software and to games specifically, a developer could copyright the artwork and designs of the game, the source code, and the game’s look and feel, among other aspects.  Once a work has been created in a tangible form, it is protected by common law copyright, even if the game developer doesn’t register it with any official body.  An official filing, however, can be invaluable to a developer, because it creates various presumptions as to the legality and validity of the copyright, and makes statutory damages and attorney fees available to a copyright holder in an infringement suit.  Additionally, the Digital Millenium Copyright Act offers some significant protections to game developers who are in compliance with its requirements.

Finally, despite common belief, games are often patentable.  Although trademark and copyright are more appropriate for protecting game content, developers may obtain patents on various aspects of the game, including technical aspects of a game platform, software processes and other functions, and game methods.  The important thing to remember with a patent is that ideas are not patentable, and in order to obtain a patent, there must be an invention of something that is new, useful, and non-obvious.  Game developers have been taking advantage of patents to protect things like the use of virtual currency in a game, ways of providing directions to characters, methods of rewarding players, and methods of calculating and adjusting game difficulty.  There are a number of hurdles to obtaining a patent, which can include cost, length of time required to obtain a patent, and lack of belief that the developers have created anything patentable.  Given the financial stakes, however, game patents may well be worth the time and resources required.

Protecting IP is an important, but often overlooked aspect of game development.  Developers work long and hard on perfecting games that they are proud to bring to market.  Too often, they neglect to add those crucial elements of protection that can prevent other developers from copying their work and innovations.  A well-developed and comprehensive IP strategy can mean the difference between reaping the financial rewards of developing a game, and seeing hard work lost in a sea of competitors.

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David Kim | PARTNER

David Kim is a Partner at Parsus LLP. He specializes in corporate and technology transactions, with an emphasis on intellectual property. David has represented a variety of clients from start-ups to Fortune 500 companies in mergers and acquisitions, cross-border investment, financing, and licensing. His clients do business in a range of industries including entertainment, financial services, consumer products, gaming, software, and technology services.

Prior to returning to Parsus LLP, David served as an in-house intellectual property counsel for NBCUniversal, advising on technology and mergers and acquisitions for the various business units of the company. He assisted the company’s corporate development teams in assessing acquisition targets and negotiated NDAs, vendor service agreements, software and hardware licenses, and trial agreements for experimental and prototype technology. David was also one of the company’s primary resources on open source software-related matters.

Before joining NBCUniversal, David co-founded and served as a Partner of Parsus LLP, worked as in-house counsel for start-ups, and was an associate at Winston & Strawn, where he represented clients in intellectual property matters including patent assessment and analysis, IP licenses, and various phases of patent and copyright infringement litigation. At Winston, David also represented clients in general business and securities litigation concerning commercial disputes and business torts.

Kristen Lee
Kristen Lee
| ASSOCIATE ATTORNEY

Kristen Lee is an associate attorney at Parsus  LLP.  Her practice is focused on commercial transactions and the various day-to-day legal needs of businesses of all sizes, including business formation, corporate governance, commercial contracts, and mergers and acquisitions. Prior to joining Parsus, Kristen represented corporate clients in high-stakes litigation involving breach of contract, fraud, unfair competition, and other business torts.  

Kristen is a member of the Korean American Bar Association of Southern California.

Kristen received her B.A. degree from the University of Texas at Austin and her J.D. degree from Pepperdine School of Law.  Kristen is fluent in Korean. 

EVELYN SHIMAZAKI
| OF COUNSEL

Evelyn Aguilar Shimazaki is Of Counsel at Parsus LLP. Her practice is focused on the representation of technology companies in intellectual property licensing and commercial transactions, including joint development, manufacturing, procurement, strategic alliances, outsourcing and other services arrangements. Prior to joining Parsus LLP, Evelyn was a Senior Counsel at Apple in Cupertino, California for fourteen years. After Apple, she joined Tesla in Palo Alto, California as Chief Counsel and more recently, Oculus VR, a division of Facebook in Menlo Park, California as a Consultant.  

Evelyn is a Founding Board Member of UCLA Law Women LEAD, an Advisory Board Member of the Lowell Milkin Institute of Business Law and Policy at UCLA School of Law, and a past President and Advisory Board Member of the Philippine American Bar Association of Los Angeles.

Evelyn received her B.A. degree from the University of California, Berkeley and her J.D. degree from UCLA School of Law. A native of the Philippines, Evelyn speaks Tagalog, Spanish and some Japanese.

Ju Park
| MANAGING & FOUNDING PARTNER

Ju is a corporate lawyer by training and an entrepreneur at heart.  After attending the United States Military Academy at West Point for a year where she gained essential life skills including throwing grenades and applying a tourniquet, she graduated from McCombs Business School at the University of Texas majoring in finance.  Ju then graduated from UCLA School of Law where she focused her studies on International Business Law.  After law school, she practiced corporate law and litigation in the Los Angeles and Hong Kong offices of an international renowned law firm, Latham & Watkins, where she advised domestic and foreign clients, including Fortune 500 companies, on various corporate matters including general commercial contracts, corporate finance, IPOs and mergers and acquisitions.

Ju co-founded Parsus in 2009 with a vision to transform the legal services industry to make quality legal advice more available to and affordable for businesses of all sizes while improving the lifestyle and overall happiness of lawyers.  Over the years, and particularly since recently becoming a mother, Ju’s vision for Parsus has expanded to transform our extended community by committing a part of the firm’s profits and resources for charitable purposes.

In her role at Parsus LLP, Ju serves as outside transactional and general counsel to clients of all sizes and across a broad range of industries.  Her clients include domestic and foreign companies to whom she provides practical and cost-effective solutions to their general day-to-day business legal matters as well as major transactions such as mergers and acquisitions, corporate finance and cross-border transactions.  Ju combines her legal expertise with her business acumen to provide practical solutions to her clients’ legal issues without “over-lawyering” their contracts or deals.  Ju’s recent clients have included foreign and US companies acquiring and/or investing in US companies or assets, US companies receiving foreign and domestic investments, US subsidiaries of foreign companies going public, and foreign companies with ongoing US operations.  Ju also enjoys working with like-minded entrepreneurs and start-up executives.