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Video Games and the Law: Copyright, Trademark, and Intellectual Property

— November 25, 2020

Whichever way you are related to the gaming industry, Intellectual Property Laws should be of concern to you.

The worldwide gaming industry has experienced an explosion in recent years. For instance, in 2017 alone, the industry generated a whopping $117 billion. Also, Grand Theft Auto garnered close to $1 million within three days of its release. It has gone on to sell more than 90 million units worldwide. These projections are expected to keep going up. In recent times, with the coronavirus pandemic forcing people to look for alternative online sources of entertainment, it is only expected that the numbers will keep climbing. 

Additionally, the demographics of those playing video games have changed drastically. If you still hold on to the idea that only teenage boys play video games, then you are in for a rude shock. Today, gamers are as varied as the different game offerings that exist. Both males and females, young and young-ish persons, all play video games. Similarly, game models have also experienced a revamp with the years. A few years ago, the more popular games were played on consoles and sold directly through retail outlets. 

Although console games and retail marketers are still in vogue, they are slowly phasing out. The raves of the moment are games played on mobile phones. These mobile games offer ease and mobility to gamers, which is one of its chief attractions. They also make it easy to place and keep up with bets placed on platforms such as Best Esports Betting. The use of digital marketing has also flooded the market with these games, making them available with relative ease. 

These constant changes in the gaming industry inform the need for strong regulations. The lines are consistently getting blurred, with the key players in the industry moving from one sphere on to the other. Thus, it does increase the imperative for these lines to be well delineated, indicating each party’s roles and expectations. Questions relating to data and privacy and content regulation are mostly within the ambit of Intellectual Property. What this means then is that the first step in understanding and addressing gaming law-related issues is having adequate knowledge of Intellectual Property rights.

Intellectual Property Rights

USPTO seal; courtesy of U.S. Patent and Trademark Office; public domain.
USPTO seal; courtesy of U.S. Patent and Trademark Office; public domain.

Intellectual Property rights are a body of rights as tangible as land rights. However, it protects intangible properties. Its domain is usually over creative works. Works ranging from music, writing, art, all come under the regulation of Intellectual Property law. IP laws give the bearer a certain measure of privileges over the works they create. In Intellectual Property, three broad categories of rights are made available. These include Copyright, Patents, and Trademarks. (These will be discussed subsequently below.)

These bundles of rights, except copyright, require registration before enforcement. Each country has a body empowered to facilitate registrations and grant these rights. The process for each jurisdiction varies. However, regardless of the jurisdiction, the aim of IP laws globally is the same. This goal is the promotion and enhancing of the free market. When individuals acquire exclusive rights to their works, it shuts off every form of copying and illegal acquisitions. In extension, this promotes innovation by rewarding artists for their creations. 


This is a category of IP rights that protects inventions. It gives an inventor the exclusive right to explore the product for a certain number of years (usually 20 years.) There are certain tests that an invention has to pass before being patented. These tests vary across countries. During the protected period, competitors are prohibited from introducing similar products into the market. Similarly, the patent also protects the process of creating the invention. Games generally are software and so may not be patented. However, the process used in designing the software may well come under protection. 


Trademarks offer protection to the distinctive signs used in marketing a product. Thus, once a sign is intricately tied to a product, it acquires trademarks protection. The identifying item could be a word, a sign, a sound, or even the product shape or design. As long as it has been used over the years to identify a particular product exclusively, then it qualifies for trademark protection. Trademark helps consumers identify a product easily. Also, it instills some level of confidence to the would-be purchaser. This is because quality is tied to trademarks. Finally, it helps create a bond between the consumers and producers of said item.

For gaming, it is usually a little tricky determining what comes under trademark protection. This is because different items identify different aspects of the game. For instance, there could be both recognition for producers’ and distributors’ trademarks, all of which are distinct and valid. In essence, one game could have several trademarks, all joggling for recognition. However, developers usually seek for a means to identify a trademark unique to the game itself. Thus, this trademark will be divorced from the producers’ or distributors’ trademark. More so, characters in the games can be trademarked, too.


Copyright is an area of tremendous concern for the gaming world. It is the most relevant bundle of rights that regulates the gaming community. One key thing to note is that there is usually no need for registering for copyright. It comes into effect as soon as the work is created. Thus, works for which it offers protection, i.e. artistic works, including codes for gaming software, are automatically protected. However, as a developer, you may want to take the extra step of registering your copyright. This gives you a double layer of protection. Also, it makes it easier to get enforcement. When there is an infringement by a third party, you can easily approach the courts for a remedy. 

Copyright resides with the author of a work. This is what is meant by the fact that copyright goes with authorship. In the gaming process, who then is the author of the game? Most games are produced by gaming companies. They are then created by employees or outsourced to third parties. Thus, it could take a while to untangle who authorship resides with. This is achieved by taking the scenarios on a case by case basis. The courts usually look at the contract governing the existence of the game. Typically, the companies that ordered the game usually own the authorship. However, the creators may also get some benefits, having expended their creative prowess to create the game. The extent of these rights would depend on the jurisdiction in question. 

Copyright encompasses different facets of a game. It could provide protection for the written parts of the game. Here, texts in the game, including dialogue between the characters, would be protected. Musical works and compositions also come in here. In fact, every sound design used in a game is eligible for protection. If voice-over artists are used in the game, their work will come under copyright, too. Finally, general graphic designs are further protected. 

Video Games and the Law

The size and revenue generated by the gaming industry have made intellectual property all the more important. The difference between a successful venture and another might just be registration. 

In the first place, copyright safeguards the efforts used in creating the gaming software. It equally protects artistic forms in the games such as songs and jingles. As already stated, developers are barred from copying or profiting from existing copyright. In some instances, some permission can be obtained from the copyright holder to enable the creation of copies of their work. Cases where this happens usually include when derivatives are made from existing copyright. For instance, a license had to be obtained for the creation of the Shrek game based on the Shrek movie. 

Trademarks protect items associated with a game. These include characters, songs and even sounds. Any infringement could give rise to litigation. Patent, while it does not strictly concern gaming, could still be quite important. 

Additionally, an understanding of IP laws will save a developer a lot of hassles. Developers will often need to incorporate licensed material into their work. This is due to the nature of the industry. Incorporating a licensed material helps beef up the popularity of the games. This is done with the knowledge that getting affiliated with a known brand helps improve reach and coverage. It also offers some level of legitimacy to the developer, especially if they are a new entrant into the space. However, most developers fail to obtain these rights legally. This could be traceable to the (sometimes) arduous process involved in obtaining the required licensing approval. In the long run, they still end up paying for these deliberate oversights. Developers can thus avoid pitfalls and costly litigation by following due process in obtaining appropriate licenses for their games. The first step in doing this is arming oneself with knowledge about how IP laws regulate the gaming industry.


Whichever way you are related to the gaming industry, Intellectual Property Laws should be of concern to you. It will be instrumental in making sure that you stay on the right side of the law. More importantly, this knowledge makes you aware of your rights and how to enforce them. In this discussion, you will find the basics of what you need to know about IP and how it regulates the gaming world.

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