The video game industry has become one of the most important cultural industries worldwide. In Spain, the figures are significant: according to the 2020 Yearbook of the Spanish Video Game Association, In that year, the Spanish video game industry had a turnover of more than 1.7 billion euros. Spain is in the world top 10 by market size, with almost 16 million regular players. And if the figures for the sector are significant, its growth is even more so, as this turnover represents a increase of almost 20% compared to the previous year. For this sector to continue its development and for growth expectations to be met it is essential to protect your assets, especially when we talk about intangible assets, such as those linked to the world of video games, which are particularly vulnerable to copying and illegal appropriation by third parties.
Does intellectual property law protect video games?
The Spanish Intellectual Property Law (LPI) there is no reference to video games. Nor is there any provision for them in the international treaties on the subject to which Spain is a party. That being the case, in order to achieve legal protection for video games, it is advisable to classify them within other categories of works and services that are expressly protected by intellectual property law.
Therefore, when addressing the legal protection of video games, we must begin by asking ourselves, from a legal point of view, what a video game is.
What is a video game?
At first, video games were identified with the software that made them work. Intellectual property law establishes that computer programs are objects that can be protected by said Law (Art. 10.1 i) LPI) and the rights to the programs can be registered in the Intellectual Property Registry (Art. 101 LPI). Thus, with the software protected, the video game was also protected.
This was a valid solution for the first generations of video games, in which the audiovisual aspect was very underdeveloped and the value lay essentially in the game program. However, the direction taken by the industry has radically altered this initial situation. Today the audiovisual element of games is a fundamental part of its value, which cannot be left unprotected.
In addition, it is increasingly common for different games to share the same software or, at least, part of it. This is the case, for example, with the graphics engine of many video games. Thus, the engine Frostbite, developed by DICE, is used by games such as Battlefield, Mass Effect Andromeda, FIFA 18, Need For Speed, and Anthem; or the engine Unreal Engine 4 is used by Fortnite and Gears of War 4. The software developer may allow its use by different studios within the company or license its use to external studios. In any case, it seems that the identification of the video game with the program that runs it has been overcome.
As an alternative, it has been argued that video games are audiovisual works, such as a movie or television series. However, this position does not take into account the fundamental feature of video games, which is interactivity of the content. The gamer is not a passive spectator, but rather their interaction with the game is essential to the development of each game. Furthermore, if we conceive of video games in this way, we ignore the protection of one of its essential elements which is, precisely, the program computer.
Finally, it has been proposed to consider video games as a multimedia work, that is, as a work in which, thanks to a computer program, elements belonging to different media (text, sound, animation, etc.) can be combined. Video games are multimedia works, as are, for example, web pages.
However, the configuration of the video game as this type of work presents the drawback that the work Multimedia is also not classified in the LPI.. Therefore, if our intention is to find a legal category of works that video games fit into, this alternative is of no interest to our purposes.
With the first option mentioned, the audiovisual content remains unprotected; with the second, it is the computer program that lacks protection; and the third option is not useful for achieving our objective. Given this situation, instead of trying to protect the video game by registering it as an indivisible whole, the most advisable course of action is to record each of its elements separately. This leads us to consider which elements of the video game can be protected, a question that we will address later in this article, but first, we must refer to who can register them, that is, who owns the rights to the video game.
Who owns the rights to a video game?
When a video game is made by a single person, there is no doubt as to who is its author and the owner of the rights. But normally video games (and their components) are created thanks to the contributions of many people. In the LPI, works created through the contributions of several people can be of two types: (1) the collaborative work, which is the unitary result of the contributions of authors who are on an equal footing, and (2) the collective work, which is created by bringing together contributions from several authors, but on the initiative and under the coordination of a single person.
In the collaborative work participation in rights corresponds to the contribution that each of the co-authors has made, while in the collective work the rights belong to the individual or legal entity under whose initiative and direction the work is created. In principle, an independent video game could be considered a collaborative work and a studio video game a collective work, although the circumstances of each specific case would have to be examined.
Now then, with regard to audiovisual elements of the video game, it should be borne in mind that, in accordance with Article 87 of the Intellectual Property Law, the audiovisual work is configured as collaborative work (and not as a collective work), with the director, screenwriter, and composer of the original soundtrack as co-authors. However, according to Article 88 of the Intellectual Property Law, most of its exploitation rights (reproduction, distribution, public communication) are presumed to be assigned to the producer, unless expressly provided otherwise in their contracts.
On the other hand, it should be noted that, in accordance with Article 51 of the Intellectual Property Law, without prejudice to what may be agreed in the contract, are presumed to be transferred exclusively to the employer the exploitation rights of works created by the salaried author, always “with the scope necessary for the exercise of normal activity” of the company.
Similarly, Article 97.4 of the Intellectual Property Law, with regard to computer programs, establishes that when the program is created by a salaried employee, the ownership of the exploitation rights over the program, which includes “both the source program and the object program”, corresponds to the entrepreneur.
Similarly, it may be the case that part of the video game was not created internally at the studio, but rather its development was outsourced to a external collaborator. In this case, it is highly advisable to include in the contract for work one assignment of rights clause, which must also specify whether the transfer is exclusive or non-exclusive. We have already discussed work assignments and transfers of rights in this post.
An interesting question regarding the ownership of rights is that relating to the case of those mods. A mod is a modification made to an original video game, introducing new scenarios, characters, game modes, etc. From an intellectual property standpoint, the mod is a derivative work (Art. 11 LPI). To create a work Derivative works require authorization or transfer of the right of transformation. of the rights holder of the original work. Therefore, all mods performed without authorization or transfer of rights are, in principle, unlawful and infringe on rights of the owner of the original video game. However, the creation of mods is common practice in the industry and these violations are not persecuted (in fact, they are often favored) because studies are interested in the development of mods of their games, as they serve to attract and maintain consumers' attention.
Now that we have an idea of who owns the rights to the elements that make up a video game, we can discuss which of these elements can be protected.
What can be protected?
According to Article 10.1 of the Intellectual Property Law, all original creations expressed by any means or medium are protected by intellectual property rights. Thus, all elements of video games that are originals and are expressed in some form (that is perceptible by the senses) are protected by intellectual property rights.
Specifically, we can highlight the following as protectable elements: the different types of software (graphics engine, physics engine, artificial intelligence) auditory elements (the soundtrack and sound effects), the visual elements (the concept art, stage and user interface design, all kinds of images, animations, maps), choreography, hyphen, etc.
And the characters? Are video game characters protected? The protection afforded by intellectual property rights undoubtedly extends to the image of the character, to their outward appearance. It is also protected. your name (provided that it is sufficiently original). However, the character cannot be protected by reference to the description of a series of physical characteristics (strength, dexterity, constitution, etc.) or psychological characteristics (boldness/shyness, friendliness/antipathy, optimism/pessimism, insight/stupidity, etc.). As we have seen, Article 10 of the LPI establishes that original creations are protectable. expressed by any means or medium. The expression requirement excludes the protection of mere ideas that have not yet taken shape.. And a description of the character such as the one referred to, where only general characteristics are mentioned, is too close to a mere idea to be protected.
With regard to characters, it should be noted that, once they have been given a form that externalizes them, their owner enjoys the protection of all the rights granted by the Intellectual Property Law., including moral rights. This could be seen in the Lara Croft case (SAP of Barcelona, May 28, 2003), in which the Provincial Court of Barcelona convicted the publisher of a magazine that had published a report in which the popular protagonist of the video game Tomb Raider was portrayed in an erotic context, for violating the moral right to the integrity of the work.
We already know which elements of the video game are protected, but there are others that are not. Below, we will see which ones they are.
What CANNOT be protected?
Firstly, they cannot be protected by copyright. elements that lack originality. As we have seen, one of the essential elements of protectable works, as established in Article 10 of the Intellectual Property Law, is their originality. An original work is a new work for which there is no precedent or, from another point of view, a work that reflects the personality of its author.
With the above in mind, we can say that all elements of the video game that are characteristic of its genre. That is, elements of a game that are commonly used in the industry and do not represent a genuine contribution by the creators of the video game. For example, it is very common in fighting games for the “life” of the opponents to be shown to players via a bar, usually red in color, which decreases as the character takes hits. This is a visual element so widely used in the sector that we can say it belongs to the common heritage. Therefore, it is not original and cannot be protected.
Other elements of the game that cannot be protected are the ideas that serve as their basis. As noted, intellectual property considers original creations to be protectable works. expressed in any medium or format (Art. 10 LPI). Therefore, mere ideas, insofar as they lack expression, cannot be protected. This excludes the protection of game mechanics, game modes y rules. And it should be noted that, if the ideas are expressed, only that specific expression of the idea can be protected, not the idea itself. In other words, if the rules, for example, are expressed in a text included in the game, that specific text cannot be reproduced by any competitor, but they can adopt the same rules for their game as long as they do not copy the text in which they are expressed.
The lack of protection for ideas is what has allowed the emergence and development of so-called “clone video games”These games copy the underlying ideas of other successful video games, but not the rest of the elements, which are protected. One example is the popular Candy Crush and its clones: Puzzle & Dragons, Marvel Puzzle Quest: Dark Reign, Bejeweled, Triple Town, and Farm Heroes Saga.
However, although copying ideas cannot be prosecuted under the Intellectual Property Law, if the imitation of the rules, mechanics, and modes of play, combined with the similarity in other elements, reaches the point where consumers may associate one game with another in their minds, legal action could be considered. unfair competition.
Once the protectable elements of the video game (and those that are not protectable) have been specified, we will see how we can implement this protection in practice.
How to protect a video game?
The first thing to bear in mind is that, Simply by creating a video game, its creators automatically become the owners of the rights. granted to the author by the LPI (art. 1 LPI). No registration or record of any kind is required; the mere fact of creation is sufficient to attribute all rights.
However, being the author of a work does not mean that, in the event of a dispute, such authorship can be proven. That is why it is highly recommended to have some kind of record that serves as proof that, on a certain date, the video game exists and its rights belong to a person (physical or legal) entity.
One of the main registration options is the Intellectual Property Registry (RPI). Registration in the RPI does not constitute an unassailable title, but it establishes the legal presumption that the right exists and belongs to the registered owner from the date of registration. In the event of a dispute, it will be the other party who will be obliged to rebut this presumption. In other words, the burden (and difficulty) of proof lies with the other party.
Alongside the RPI, there are other alternatives from public and private, national and international registries, each of which has its own particularities and advantages.
In addition, it is advisable to supplement copyright protection with that provided by industrial property. Specifically, many of the elements of the video game can be registered as brand. Thus, it is possible to register the name of the game, its logo, the names and images of its characters, and even musical compositions and sound effects as trademarks, provided that all these elements are sufficiently distinctive and can be represented (Art. 4). Trademark Law).
Finally, along with legal protection, it is advisable to adopt technological protection measures, i.e., technical devices that prevent unauthorized reproduction or block the use of the game outside a specific geographical area. These measures are lawful; they are recognized by the Intellectual Property Law (Articles 196 et seq. of the Intellectual Property Law, Article 102 c) of the Intellectual Property Law) and their unauthorized neutralization is considered a copyright infringement and even a crime (Article 270.5. c) Penal Code). However, the use of these measures is also subject to legal limits. This was evident in the Nintendo case, in which the Court of Justice of the European Union established the principle that technological protection measures must be established in accordance with a criterion of proportionality, that is, the measure adopted must serve to prevent unlawful use (in this case, the reproduction of illegal copies of Nintendo games on its consoles) but not other lawful uses (in this case, the reproduction of MP3 files, music, video, and photographs on those consoles).
As we have seen throughout this article, protecting video games is possible but complex, and at the same time essential to preserve the results of the investment and effort made in their development. A good protection strategy must be tailored to the product and approached from different perspectives (copyright, trademarks, unfair competition, technological measures).
If you have created a video game and want to protect the fruits of your labor, at Bamboo.legal we are specialists in intellectual property and can advise you. You can write to us at info@bamboo.legal or through our contact form.
[Article written by Luis Mª Benito Cerezo]
