NAVIGATING INTELLECTUAL PROPERTY RIGHTS IN VIDEO GAME DEVELOPMENT

• Owners of well-known brands understand that intellectual property infringement proceedings can be brought in each territory where they have enforceable intellectual property rights and the unauthorised use has allegedly taken place. Considering the global reach of the video game market, the prospect of defending multiple lawsuits, or even a single major lawsuit, can be extremely daunting for video game development companies.  

• Due to the way that video games are coded, if material is ordered by a court to be removed from a video game, it’s likely that the entire video game will be effectively decommissioned, temporarily or permanently, sinking the business of smaller video game developers when having to capitulate. 

• Large video game developers, though, are often able to leverage their deep pockets to negotiate a license after the fact, re-commission the video game, or even settle out of court. 

• It is increasingly difficult to establish rules or clear boundaries about what can be depicted in a video game without obtaining or securing a license. It involves an analysis of the territory-specific laws applied to each allegedly infringing real world IP asset at issue, which will often trigger one or more overlapping types of law such as trade mark and copyright law or even patent law. 

• Practically, then, it is essential for an attorney with suitable qualifications in this area to be consulted at various stages of the video game development process. For instance, a specialist will inquire whether the video game is modularised - meaning, constructed in such a way that the removal of a certain IP asset will not compromise the integrity of the game. More fundamentally, such a specialist will be able to assess the risk of including certain in-game IP assets and manage the risk and expectations of what the game can or cannot include. 

• The creative process will then be managed accordingly to ensure that the proposed product is presented to the market without the burden of litigation. This applies whether the developer is a start-up or a larger video game company, to ensure that risks are managed, and licenses are obtained where necessary.