Video Games: Intellectual Property Protections (This will ultimately be the title, replacing Salena's Sandbox)

In the world of video game design and development, there are many things to consider in the creation of a game. As one considers all of the elements necessary to create a complete enjoyable video game, protecting a developer’s original works and obtaining the proper licenses to use intellectual property that belongs to others, is another consideration. This can protect the works and save time and money by avoiding infringement lawsuits. Copyrights, trademarks, and patents can protect the parts of a game once they are implemented; music, artwork, avatars, game mechanics, etc.”[1] Trade secret laws offer protection of information that may effect a companies current or future economic status.[2]

Protection Options


Video Game copyrights may be formally filed with the The United States Copyright Office and may include software, characters, scenes, music, art, text, in game dialogue, written instructions, and game code.[1]

In the United States, copyright laws (title 17, U. S. Code) protect authors of original works, including "...literary, dramatic, musical, artistic, and certain other intellectual works..."[3] and protect published and unpublished works. While copyright does not protect an idea [4], as soon as an idea is implemented, copyright exists legally, however, formally filing copyright with The United States Copyright Office may offer greater security in legally proving copyright, should there ever be a need. Copyright holders are generally authorized to reproduce, create derivative works, distribute copies, and publicly perform and/or display the work.

The United States Copyright Office which records copyright documents, explains copyright, copyright fees, and the appropriateness of pre-registration. The office also offers an option to search for existing copyrights, and provides information regarding copyright law and policy.[3]


Video Game patents are applied for through the The United States Patent and Trademark Office and may include technological innovation and original design.[1]

A U.S. patent may be applied for through The United States Patent and Trademark Office and only provides protection in the United States, U.S. territories, and U.S. possessions. A patent does not grant the right to make, use, or sell an invention, but rather the right to deny others from doing so. It also denies others the right to import a patent protected invention into the United States. In order to patent an innovation, a detailed description of it must placed on public file. Typically a patent protects an inventors rights for 20 years from the date that the patent application was filed.

There are three types of patents; Utility, Design, and Plant. Utility patents protect inventors of new and useful processes, machines, articles of manufacture, compositions of matter, or new and useful improvements thereof. Design patents protect inventors of new, original, and ornamental design for an article of manufacture. Plant patents protect those who asexually reproduce new and distinct plant varieties.[5]

The United States Patent and Trademark Office, accepts online patent applications and maintenance fees, provides application tracking, explains patents and fees, and has an extensive general information page.[6]

Trademarks and Servicemarks

Video Game marks are registered with the The United States Patent and Trademark Office and may include brand, title, symbol, and character.[1]

The United States Patent and Trademark Office registers marks that are used in interstate and foreign commerce. Trademark and servicemark rights protect a mark owner against others using or creating the mark or one confusingly similar to it.

Trademark rights protect a word, name, symbol, or device that distinctly signifies the originator of a product. Sevicemark rights are the same as trademark rights, except they protects marks that distinctly signify the originator of a service, rather than a product. These rights protect the mark, not the products or services they identify.[5]

The United States Patent and Trademark Office, accepts applications, provides application tracking, and explains trademarks and fees.[6]

Trade Secret Protections

Uniform Trade Secrets Act of 1985 (UTSA)

The Uniform Trade Secrets Act of 1985 stipulates that any information that does, in the present, or may, in the future, have independent economic value and that value is dependent on the information remaining secret, may be protected as a trade secret, until such a time that the information is known to business people or competitors or such a time that it is made public. The difference between this and patents is that the information protected by the Uniform Trade Secrets Act of 1985 is not disclosed in order to be protected, the protection does not prevent others from legitimately discovering and profiting from the information and is the term of protection is not time limited.[7][8]

Trade secrets are primarily protected at the state level. The Uniform Trade Secrets Act of 1985 has been adopted by 45 of the 50 states, as well as the District of Columbia and the Virgin Islands. Five states have not adopt The Uniform Trade Secrets Act of 1985. Massachusetts, North Carolina, and Texas have created their trade secret protections, while New Jersey and New York protect trade secrets through common law.[9]

Economic Espionage Act of 1996

The Economic Espionage Act of 1996; Section 1832, is federally enforced and functions much like The Uniform Trade Secrets Act of 1985, however, its definition of a trade secret is broader, it only requires that that the information is not known to the public, and individuals who unintentionally share trade secrets, whether through ignorance or mistake, are not punishable with this act. The act only requires proof of intent to divulge trade secrets, thus the actual secrets are irrelevant and are not required for prosecution. This protects the plaintiff from having trade secrets revealed that may have otherwise remained secret.[8]

Non-disclosure Agreement

A confidentiality agreement or non-disclosure agreement(NDA), is a signed agreement between parties, stipulating that specific information will be kept confidential for a specific period of time. These agreements provide two distinct protections; secrecy of the trade secrets that are clearly labeled confidential and the future ability to pursue patent protection for the protected information.[10]

Implementing Protected Property

Intellectual property that is not created in-house, including art, brands, characters, game codes, in-game dialogues, music, original designs, scenes, symbols, technological innovations, text, titles, and written instructions, may be legally included in video games, with the proper licenses.[1] License agreements are customizable between the property owner and the licensee.[11] Securing the appropriate licenses before protected property is implemented in a video game helps protect video game developers from infringement lawsuits and provides a revenue source for the property holder, in the form of royalties or license fees. “…before, most of the lawsuits filed against those in the video game industry were filed by those also in the video game industry. However, more legal challenges against the video game companies are being launched by outside entities attempting to assert their patents against the video game industry.”[3]

Notable Court Cases

During the 1970s and 1980s court cases, involving video games, equated them to computer software, thus protected under copyright laws. In the 1990s, as case law pertaining to video games evolved, so did copyright issues pertaining solely to video games. Also during the 1990s, patents became generally accepted as a an appropriate means of protecting computer software.[1]

In Atari Games Corporation v. Ralph Oman, Register of Copyrights, Atari Games Corporation was refused an audiovisual copyright for the video game "Breakout" twice and three times it was remanded back to the Register of Copyrights for further consideration. After the second remand, Oman refused copyright on the basis that the elements of the game were "simple geometric shapes and coloring"[12][13] and did not qualify for copyright. On November 20,1992, the United States Court of Appeals, District of Columbia Circuit, remanded the case to the district court with directions to return the copyright application to the Register for further consideration. It further ordered that the Register consider the game as scenes, as opposed to individual elements. This time, copyright was granted.[12][13]

In Sega Entertainment v. Accolade, Inc., Accolade, Inc. was accused of infringing on Sega Entertainment's copyright, when it reverse engineered the Sega Genesis console’s operational requirements and special key. This allowed Accolade to produce video games playable on the Sega Genesis, without paying licensing fees to Sega Entertainment. On October 20, 1992, the United States Court of Appeals for the Ninth Circuit found for Accolade, Inc., concluding that even though Accolade, Inc. had copied the binary code for Sega Entertainment's video games, it was not implemented in Accolade, Inc.'s product, but was necessary for the product creation and legal under fair use. Sega Entertainment also claimed that Accolade, Inc. was guilty of trademark infringement, because the use of the special key caused the Sega trademark and logo to appear before loading any game containing the special key and that the appearance of the Sega mark may confuse consumers into believing that the game was licensed or produced by Sega Entertainment. The court found in favor of Accolade, Inc., stating that since Sega Entertainment had created the key to generate the mark upon activation, Accolade, Inc. was not responsible for any resulting consumer confusion. Sega Entertainment did not argue that Accolade, Inc. had infringed copyright by including the special key in their games.[1][14]


The Digital Millennium Copyright Act ("DMCA"), enacted in 1998, was implemented to to stop digital piracy, but has produced a result unintended by Congress. It has been used against researchers, students and hobbyists. "...Videogame hobbyists have been sued for trying to improve or extend the capabilities of their favorite game titles. Sony has threatened hobbyists for creating software that enables Sony’s Aibo robot dog to dance, and has sued to block software that allows gamers to play their PlayStation games on PCs..."[15]

"...wording of the DMCA has alarmed security researchers. Ed Felten, the Princeton professor, told the Copyright Office last month that he and a colleague were the first to uncover the so-called "rootkit" on some Sony BMG Music Entertainment CDs--but delayed publishing their findings for fear of being sued under the DMCA. A report prepared by critics of the DMCA says it quashes free speech and chokes innovation."[16]


This article uses material from the Wikipedia article wikipedia:en:Draft:Video game intellectual property rights, that was deleted or is being discussed for deletion, which is released under the Creative Commons Attribution-ShareAlike 3.0 Unported License.
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