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.