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The intersect between intellectual property law and video games

STEPHEN ANNICCHIARICO

TECHNOLOGY & IP LAWYER

The intellectual property associated with video games is entirely owned by the creators of the video games (i.e. the video game developers). The true extent of  intellectual property rights held by developers is only seen where the individual elements which make up video games are isolated and unbundled:

Music, voice or sound recordings

IP Rights: Musical Works (Copyright)

Musical Works are any combination of melody and harmony, which, in the case of video games, can prove influential to the success of, and can become synonymous with, the relevant video game, such as the “Super Mario Bros” theme song.  Legal disputes often arise where such Musical Works are used without the consent of the owner as seen where Dion DiMucci sued ZeniMax, for using “The Wanderer” in the video game “Fallout 4” without adequate consent.[1]

Original Work

Infringing Work

Words or text

IP Rights: Literary Works (Copyright) and Trade Marks

Literary Works are words that are expressed in print or writing.[2] The underlying code comprising video games may be seen as Literary Works as such code is essentially a set of statements or instructions, bringing about a result in a computer (i.e. the gaming hardware/system).[3] Literary Works may also be seen where specific words (or phrases) are displayed during gameplay. Often where such words or phrases uniquely distinguish a specific video game, the developer of the video game may seek to register such words as trade marks (for improved brand protection), as seen in the case of the popular video game Grand Theft Auto.

Australian Trade Mark Number 1249907
Australian Trade Mark Number 1249907Extract from the Australian Trade Mark Register

Gameplay

IP Rights: Literary Work (Copyright) and Patents

Elements of video games may be registrable as patents (i.e. a registrable right that protects a product or concept, whether that’s a substance, device, method or process). However in Australia, video games face significant patent registration barriers, often failing to meet the criteria of an “inventive step” (i.e. a ground-breaking development in the field), but may constitute an “innovative step” for an innovation patent. [4] Abroad, various patents have been registered to protect elements of video games, such as Sega’s patent over an element of the video game, “Crazy Taxi”, being U.S. Patent No. 6,200,138. Sega’s patent was infringed by Fox Interactive in the Video Game, “The Simpsons: Road Rage”, who substantially replicated protected elements of Sega’s “Crazy Taxi” video game, being a vehicle driving on a roadway, with an arrow or other indicator directing the player where the vehicle should be driven.[5]

United States of America Patent No. 6,200,138 (Crazy Taxi - Sega)
United States of America Patent No. 6,200,138 (Crazy Taxi - Sega)Extract from the United States of America Patent Register
Crazy Taxi
Crazy TaxiSega
Simpson's Road Rage
Simpson's Road RageFox Interactive

Drawings, images and animations

IP Rights: Artistic Works (Copyright) and Trade Marks

The drawings, photographs or other works of artistic craftmanship,[6] such as animations and dynamic objects incorporated within the video games, or even the video game boxing, may be considered Artistic Works. In one instance, Moonton Technology (Moonton) infringed Riot Games’ intellectual property in “League of Legends” by developing the game “Mobile Legends”, leading to damages of $USD2.9 million, due to similarities in many drawings, images, graphics and animations (Moonton Case). [8] In Australia, such actions may have constituted breaches of  Riot Games’ Artistic Works, such as the “League of Legends” and “Victory” logos in distinguishable shields and the overall appearance of in-game characters. Similarly, had the “Victory” logo been registered as a trade mark in Australia, Riot Games may have been able to bring an action against Moonton for a trade mark infringement (due to substantial similarities). Further, an action for “passing off” may have been brought against Moonton, on the basis that Moonton was leveraging from the goodwill of “League of Legends” to mislead people into thinking that “Mobile Legends” was (or was affiliated with) “League of Legends”.

Storyline, script and characters

Dramatic Works (Copyright)

The storyline, script or traits of specific characters within the video games may be considered Dramatic Works.[9] In the Moonton Case, the similarities between characters such as League of Legends’ “Garen” and Mobile Legends’ “Bedivere” proved too similar to be a mere coincidence. In Australia, such similarities may have given rise to a breach of Copyright.[10]

Garen
GarenRiot Games

Key abilities
1. Demacian Justice: Deals damage to a single enemy based on how much of the enemy’s health is missing.
2. Judgement: Deals physical damage to enemies in a circular area.
3. Courage: Garen gradually increases armor over time and can activate the ability for a short term significant shield decreasing damage received.
4. Decisive Strike: Breaks free of all slows and deals bonus damage to an enemy and silences them. [9]

Bedivere
BedivereMoonton Technology

Key abilities
1. Eliminate: Deals damage to a single enemy based on how much of the enemy’s health is missing.
2. Cleaver: Deals physical damage to enemies in a rectangular area.
3. Heavy Armor: Increases Bedivere’s armor.
4. King’s Guard: Increases armor, attack damage and ability power for self and surrounding allies.[10]

The gist of it

1

The intellectual property that forms part of video games is the property of the video game developer.

2

The relationship between video games and intellectual property law is multi-faceted.

3

Owners of the intellectual property associated with video games have multiple grounds of legal recourse when they feel their intellectual property rights have been infringed.

[1] DiMucci v. Zenimax Media Inc., No. 3:17-CV-03789-EMC.
[2] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.
[3] Copyright Act 1968 (Cth) s10(1).
[4] Patents Act 1990 (Cth) s7.
[5] Sega of America, Inc. et al v. Fox Interactive et al. 4:03-cv-05468.
[6] Copyright Act 1968 (Cth) s10(1).
[7] EsportsObserver, Tencent Awarded $2.9M In Lawsuit Against Mobile Legends Developer Moonton (18 July 2018) <https://ESportsobserver.com/tencent-moonton-lawsuit/>.
[8] Copyright Act 1968 (Cth) s10(1).
[9] Riot Games, Inc. v. Shanghai Moonton Technology Co., Ltd. et al (2:17-cv-04986).
[10] Ibid.

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