Trademarks, copyrights, and patents: What they mean for you and for video games

    
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thanks, I hate it

Has the pace of news moved so quickly that we’ve already forgotten about Brendan “PlayerUnknown” Greene’s statement that video games lack any IP copyright protection? Because that was really ridiculous. Especially since what he was referring to was not actually even remotely related to copyright, but covered something that would be handled via patent. And even that wouldn’t have worked!

Of course, you can’t really blame him. By which I mean you can totally blame him, but it’s a common misconception that turns up time and again. People talk about copyright, trademark, and patent issues in the same general melange of “this company owns this,” and the thing is that they’re related terms and concepts that nevertheless mean very, very different things.

If it needs to be pointed out, I am not a lawyer and definitely not an attorney working in this particular field, which is complex, multifaceted, and the sort of law that employs lots of people to untangle things. All the same, I can give you a quick primer on what the three different things are, why they differ, and how to at least use the terminology in a way that makes you look as if you kind of know what you’re talking about.

Trademark

Turtles who are teenagers, mutants, and ninja are trademarked! But you can still have most of those things in the same place.At face value, trademark is the easiest thing to understand because it’s simply any mark you use as part of your trade. That’s pretty obvious, right? That covers a wide spread of different ideas – from basic “TM” trademark claims to formal, legally recognized trademarks registered with the government – but at its core, it means that you can’t start selling something using a name and branding that someone else already claims or registered.

By way of example, if I make a comic book about a pair of depressed 40-something divorced people learning to love a group of animals and title it The Wolverine, I would be hearing about that from Disney’s lawyers. Not because the content in any way infringes upon that company’s rights, but because I’m selling it using a name that they have pretty clearly registered and established as a trademark.

Of course, the core of trademarks is that they don’t apply if they’re not being used, if they’ve effectively been abandoned. Thus, in order to defend a trademark, you have to prove prominent and continual use while also rather zealously defending it in a variety of arenas. This is why a lot of issues about trademark violation can sometimes seem tiny or unnecessary, like Blizzard cracking down on that World of Starcraft fan project a few years back. It wasn’t out of pettiness or small-mindedness; failing to defend the trademark there would make any future attempts to defend Blizzard’s trademarks weaker. So companies tend to be proactive about defending prominent trademarks, and it’s also why you see certain slogans and terms put forth a lot.

The other important part of trademarks is that you want to make the trademarks as specific as possible to keep things defensible. A game simply titled “Ascent” would have a very weak trademark, since that’s just a normal English word and not terribly distinctive. Ascent: Infinite Realm is distinctive, however, and thus makes it easier to defend the trademark if it comes up in court. Made-up words are also usually gold, which makes H1Z1 a particularly easy trademark to defend (that’s not likely to come up in casual conversation, after all).

Copyright

Most often, MMOs deal with copyright issues, which is a bit fuzzier. By design, that is. Where trademark refers to what you use to identify the product, copyright refers to what’s actually in it, and it’s intentionally based more upon perception and similarity than it is strict usage. It’s the set of laws that govern intellectual properties because the entire notion of intellectual property comes about as part of copyright.

Consider Guild Wars 2. The world of Tyria, the Six, the Elder Dragons, Elona, the Sylvari, the Charr, and so forth are not necessarily trademarked. But it’s clear that all of those story elements are designed to be distinct and identifiable portions of the original work in question. Another title that transparently filed the serial numbers off these concepts to produce the exact same world would be violating ArenaNet’s copyright.

Or, to extend the above analogy, if I released a comic book about a short Canadian man with three retracting claws, a healing factor, and anger management issues, it wouldn’t matter if I titled it “Captain Short-and-Mad.” I might not be infringing upon Marvel trademarks with that, but I’m pretty clearly infringing upon copyright in the process.

Of course, sometimes you get away with a lot without calls of copyright infringement anyway.

Copyright is rather intentionally vague and reliant on judgement calls. Despite what a lot of people like to claim, there is no “change X number of things” or “change X% of the work” that will avoid copyright infringement. Neither does fair use work as a be-all catch-all to avoid copyright infringement. You can claim that the copyright infringements in question are covered under fair use, but you still have to prove that you are acting according to the principles of fair use (which doesn’t cover nearly as much as you might think it does).

The flip side to that, though, is that copyright also doesn’t work like trademark insofar as it isn’t reliant on prosecution. Fanfic and fan art are the classic examples, and lots of MMO companies encourage fan artists to make and even sell works based on their games. Blizzard can support and encourage Overwatch fan artists without weakening their claim to the Overwatch IP, and they can happily prosecute one artist for IP infringement while leaving another artist alone.

Or, as has actually happened, Blizzard can prosecute someone for copyright infringement based on the actual code of the game while still encouraging cosplayers and fan artists and the like.

Connected to this is the time-honored concept of the cease-and-desist letter. Contrary to what you might be thinking, a cease-and-desist letter carries absolutely no legal weight whatsoever, and you can send one at any time for any reason. It’s essentially a warning shot to promise future legal action, and it’s entirely possible to respond to a C&D letter by ignoring it altogether and facing no further consequences whatsoever. That doesn’t mean that’s the smart reaction, of course; big companies are usually wise enough to send one only if they want something taken down and have the legal weight to make it happen.

IP laws are meant, first and foremost, to make sure that creators (or the companies that own a creator’s work) are the only ones able to profit off of the IP in question in the fields that they care about. In the case of a game like PlayerUnknown’s Battlegrounds, the funny thing is that the IP basically extends only to the eponymous branding; lacking characters or a narrative, that’s all you have.

Patents

Last but not least for this particular discussion, patents cover the way that you do things. You can trademark the name Super Mario Bros. and you can copyright the idea of the Mushroom Kingdom, but if you want to make sure that no one else can make a game in which you jump on platforms and critters, you need to patent the actual mechanics.

Patents are a fair bit more complicated than trademarks or copyrights, and perhaps accordingly they require filing paperwork. Just writing something gives you copyright on it, marketing allows you to use and register a trademark, but patenting it means that no one else can write things as a means of expression. Or at least, it would mean that if writing things were not already long extant and considered normal and expected.

original gameplay concept do not steal

See, patents require you to prove that you came up with a new way of doing something that no one else had before and that is not self-evident. For this particular discussion, it mostly just covers game mechanics. Patents are also time-limited by design; you get exclusive rights for a while and can force other companies to pay you in order to replicate your work or just deny them outright, but when the patent expires, anyone can use the technology.

In the case of game systems, patents are the big reason loading screens don’t have minigames (someone squatted on the patent as soon as loading screens became ubiquitous, thus meaning that our loading screens were gameless) and generally wind up covering hopeless minutiae without really helping the industry. If you want to make sure that no one else can make a battle royale game, for instance, you could apply for a patent for it… but you would have to prove that you came up with it without prior games having similar options.

Since that would be impossible, you would probably wind up coming down on the little things that you could patent, like having a particular means of entering the arena or the like. It’s also possible to have a very novel and innovative game in which you can’t really patent anything distinct, and that’s closer to the default.

To sum up

Trademark covers the name on the product. It’s defended on a “use it or lose it” basis, whether it’s formally registered or just claimed; the more distinct it is, the easier it is to defend it in any sort of legal sense. It does not cover concepts or processes, just the names used for marketing.

Copyright covers the story, characters, and setting within a product. It does not need to be defended in order to maintain the strength of the claim. It covers the ideas within the product, not the systems or the marketing name.

Patent covers the operation or interaction of the product. It is time-limited and gives you the right to request fees from anyone who wishes to use similar technology or to simply deny its use. Patents require proving that something is distinct and new rather than a remix of old ideas.

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luxundae

Thank you folks for covering this issue! IP is particularly interesting industries with low natural barriers to entry and there are always some large players in such industries that end up specializing more in IP than in actual content creation.

A couple of quibbles. Sorry, I can’t resist.

Copyright covers *expression of ideas* but emphatically does not cover ideas themselves. Covering ideas themselves rapidly runs into a melancholy elephants problem. In the States, copyright is primarily focussed on preventing identical copies of works. I cannot make an actual photocopy of Harry Potter and sell it. I can rewrite Harry Potter in my own words (filing the serial numbers off) and sell that. That’s fine. Transparent, but not illegal. WoW clones are also transparent but not illegal, even if they have extremely similar races, characters, and storylines. They just can’t be word-for-word, nor can they use identical graphic assets.

You probably could get away with publishing Captain Short-and-Mad, is what I’m saying, as long as the character didn’t look exactly like the real one.

Trademark is primarily concerned with consumer confusion. The idea is that there is value in making sure normal people can trust a brand and trust that a Toyota was actually made by Toyota. If there’s no consumer confusion, there’s normally no trademark suit. However, confusion is presumed in all sorts of cases.

Patents are really meant for physical devices. Windmills are the best example. They don’t work well in the modern age of software, and many legal systems actually don’t permit software patents. The States have until recently but that’s changing quickly. Hopefully patents will not be a major factor in video games or virtual worlds going forwards. If they are, it will most likely be because someone like SpatialOS has patented some facet of their engine or server infrastructure rather than a particular game patenting some part of itself.

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Schmidt.Capela

Consider Guild Wars 2. The world of Tyria, the Six, the Elder Dragons, Elona, the Sylvari, the Charr, and so forth are not necessarily trademarked. But it’s clear that all of those story elements are designed to be distinct and identifiable portions of the original work in question. Another title that transparently filed the serial numbers off these concepts to produce the exact same world would be violating ArenaNet’s copyright.

Not quite. If someone tried to sell a story with the exact same characters, with the same names, then yeah, it would likely be copyright infringement. But there are perfectly legal ways to “file the serial numbers off”, resulting in a work that has a selection of elements of the original, but doesn’t infringe its copyright in any way.

By the way, the process of removing direct references to the copyrighted work in order to sell a story is indeed known among fanfic authors as “filling off the serial numbers”. From the Wikitionary: “(fandom slang, idiomatic) To remove the copyrighted elements from an existing work of fan fiction so that it may be commercially published as original fiction.” And the term is not exactly new; it was already used in the Robert A. Heinlein book Glory Road, published in 1963 (to quote, “That’s the way with writers; they’ll steal anything, file off the serial numbers, and claim it for their own.”).

Or, to extend the above analogy, if I released a comic book about a short Canadian man with three retracting claws, a healing factor, and anger management issues, it wouldn’t matter if I titled it “Captain Short-and-Mad.” I might not be infringing upon Marvel trademarks with that, but I’m pretty clearly infringing upon copyright in the process.

Kinda ironic in that Marvel and DC do this to each other all the time. To mention a very blatant example, take Marvel’s Squadron Supreme:
– Hyperion is the last survivor of a dying world, sent to Earth as a baby and raised by humans. He is nearly invulnerable, absurdly strong and fast, flies, has X-ray vision and heat vision, and absorbs energy from the light of the sun.
– Nighthawk as a kid saw his parents killed in front of his eyes. Inheriting his parents’s company, he used his wealth to create many gadgets that he uses to fight against those he holds responsible. He has no superpower, but is an extraordinary detective and martial artist.
– Doctor Spectrum one day found a glowing rock, which bonded with her and gave her the power to create hard light constructs.
– Blur was a normal human until an accident gave him superspeed and increased metabolism.
– Zarda, also known as Power Princess, hails from Utopia Island, a small island nation hidden from the world. Like other utopians her physical abilities are far above those of normal humans, and she is nearly ageless; besides that, Zarda is a trained warrior.

I don’t think I need to explain which DC superteam, and which DC heroes, were blatantly copied there.

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Sally Bowls

Copyright is also time-limited. But to be uncharacteristically anti-corporate, the timeframe is now 120 years past the death of the author and the Disney corporation.
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I think you can get a modicum of protection from copyright by protecting the UI. I.e., in addition to the concepts, the look-and-feel of the screen.
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My IANAL understanding is you might could make Elliot Warcraft or Elliot H1Z1 as long as you always used the full name.

https://www.joelonsoftware.com/2005/07/07/project-aardvark-midterm-report/

Well, there are a couple of dozen products named Copilot, many with registered trademarks, so our trademark lawyer advised us to use Fog Creek Copilot which would eliminate any possibility of confusion with those other Copilot brand products. The point of trademark laws is that what you’re not allowed to do is create any confusion or potential confusion as to the origin of your product, and sticking “Fog Creek” in front guarantees that, but we have to be religious about always using the full name. I didn’t really mind, having started my career working on products like Microsoft Excel, Microsoft Visual Basic for Applications for Microsoft Excel, etc. etc. After a few weeks on the Microsoft Excel team if you ever saw the word “Excel” without a “Microsoft” in front of it, it looked nekkid.

Xijit
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Xijit

There is a funny story about the Dragon Lance books way back in the 80s: Wizards (or whoever owned D&D at the time) went out and copyrighted “Dragonlance” as the name of the book series & PnP modules … which was cool and the right thing to do because it is what it is, but at the same time the “Dragon Lances” in the game setting were an actual item inside the fiction and lore.

Well, guess what they dipship / no concept of English lawyers wanted them to do: They tried to tell the Authors that they needed to change the name of the “Dragon Lances” to “Dragonlance Lance” … thankfully the editor / publisher of the books flat told them to fuck off.

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Schmidt.Capela

I think you can get a modicum of protection from copyright by protecting the UI. I.e., in addition to the concepts, the look-and-feel of the screen.

AFAIK you can only use copyright to protect an UI against direct, literal copying; in other words, to infringe the copyright of the original UI, one would need to literally rip the assets of the original UI and use it on the copy. Copyright doesn’t really protect look and feel.

On the other hand I believe you can use design patents to protect an UI. Design patents are similar to normal patents, but instead of protecting how a product works, they protect its aesthetic design, its look and feel.

They are still patents, though. Which means if you can point to something that had the same design before the patent was filed, you can likely get that patent thrown out.

Xijit
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Xijit

Apple likes to sue people with its “swipe to the right” patent for unlocking a screen, but they couldn’t use it for shit after everyone else just changed the direction you had to swipe from “right” to “any.”

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Cosmic Cleric

I think you can get a modicum of protection from copyright by protecting the UI. I.e., in addition to the concepts, the look-and-feel of the screen.

AFAIK you can only use copyright to protect an UI against direct, literal copying; in other words, to infringe the copyright of the original UI, one would need to literally rip the assets of the original UI and use it on the copy. Copyright doesn’t really protect look and feel.

How about if you faithfully reproduce an UI from scratch, not using any original assets, but the new UI looks identical to the original?

Is it the assets usage, or the look and feel, that is the copyright tripwire?

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Schmidt.Capela

Copyright doesn’t deal with look and feel, but rather with literal copying.

Assets usage isn’t the only way to trigger copyright infringement. For example, if the new UI has all elements positioned in the exact same way as the original, down to the pixel, then it would likely be found infringing.

On the other hand it’s perfect possible to create a new UI that is functionally identical to the original one, that feels the same, while not infringing the original’s copyright. For example, if you make a detailed description of the original UI, and pass that description to an UI designer that never saw the original one, the UI created from that description can be guaranteed to not infringe on the original’s copyright.

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Jeremy Barnes

It’s important to note that the “failing to defend” argument is usually bull. They don’t *have* to defend every single infringement and they could do so by doing something like offering a free license that details what the devs can do. The “World of Starcraft” example could have been handled by issuing them a license that forbid them from accepting money for it for example.

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Schmidt.Capela

It’s not that they have to defend every single infringement, but rather that every single undefended infringement makes protecting the trademark harder in the future.

But yeah, you are right about a free license counting as defending the trademark.

Xijit
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Xijit

PUBG was the First Battle royal!

How dare anyone insinuate that this creative genius not hold exclusive license to the concept.

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Zora

This entire BR fad confused me since the get go… if free-for-all kill everyone else in sight deathmatches are what BR is, I am pretty confident I played some in the mid-nineties when I still didn’t know how much I dislike shooters.

Are there any notable difference poor lil unschooled me didn’t grasp?

Xijit
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Xijit

No … absolutely none: that is why I made the “PUBG is the first” joke: PUBG is about the “first” of anything shooter related in the same way that WOW was the “first” of anything MMO related.

It literally started out as a mod for DayZ, and the mechanic of the shrinking battlefield was flat out ripped from “Shootmania: Storm” (Which was developed in 2013, and even that probably wasn’t the first game to do it, but I don’t care enough to research it … my guess is that Unreal probably did it first way back in the late 90’s), then SOE called him in as a consultant on H1Z1 to clone the game mode for their PvP system (but he wasn’t smart enough to make them sign a real contract, or actually good enough at game development to bother hiring on directly), and then Bluehole picked him up because they wanted to make a clone of H1Z1.

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Tanek

I’d almost blame the people who paid him for “his idea” because that is probably what put him in the mindset of owning the battle royale game mode. They fed his ego like it was Audrey II and look what happened.

Xijit
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Xijit

SOE likely wanted Dean Hall, but when he wouldn’t sign they found the most available chump willing to answer their email.

deekay_plus
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deekay_plus

first off he had more than just an “idea”. he had a fully demonstrated in action design portfolio and intimate knowledge of how that design should work in a game.

it’s tough as nails to get a job as purely a designer in the game industry, and few manage to do it in the past 2 decades, which is why a demonstrated working design like player unknown had prior to working with SOE on hizi was key to him later getting the big bucks and top billing from blue hole on PUBG.

unfortunately SOE undervalues critical design success like this in various ways – they meddled with PU’s design in ways that made PUBG alot more attractive than king of the hill because bluehole was willing to go with his design implictly instead of fucking it up with design by committee (or design by upvote in this case).

there’s also the story of how they were interested in minecraft in it’s early days and flew notch out for a meeting. then treated him like a typical entry level potential hire instead of what the novelty of his project deserved. and there’s likely many more unknown stories like that one with them over the years where they completely shit the bed with smed’s good ol boys come first and young blood with great ideas and design and drive can be interns who knows how many times.

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Schmidt.Capela

there’s also the story of how they were interested in minecraft in it’s early days and flew notch out for a meeting. then treated him like a typical entry level potential hire instead of what the novelty of his project deserved.

Minecraft wasn’t exactly novel, though. It’s just that Notch and his team had the tenacity to keep polishing the concept and fixing its flaws until it had the quality of a professionally done game with a quirky design, while previous attempts at similar concepts were more akin to student projects ran amok.

Which, mind, is usually what dictates success or failure. Anyone can have ideas, great ideas even; what truly matters is how good that person is at turning ideas into products. In other words, like in the famous quote, getting a great product out is one percent inspiration, ninety-nine percent perspiration.

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Schmidt.Capela

Unreal 99 did indeed have a “last man standing” mode, which was basically a small-scale battle royale.

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Sally Bowls

Remember the quote equating piracy with the Holocaust?

https://jeremysoule.wordpress.com/2010/09/17/dear-michael-geist/

How bad is piracy today?

But forget the Pirate Bay… Piracy is now mainstream. Not since the Holocaust have we seen so many people of a select group forcibly stripped of their livelihoods in a public euphoria of false morals. As one who is of Jewish descent, I can say that I make this statement in a very narrow fashion, but there are similarities. Creators are being vilified, laughed off and treated with indifference by scary multitudes of people who care not for artists’ lives or liberties–let alone the concerns involved in the making of art. The new “norm” is being heralded as “liberation” from the “contrived” and “unfair” standards of fees and payments that have traditionally been worked out in a fair market society. Instead, this is the new unfair market society. The “Jews” in this valid analogy are creators. We are losing our homes, our futures and our ability to take care of our children. Laugh. I dare you. And unlike the streetlamp lighters, the world still needs creators!

The page is now down, but he compared music piracy to the Holocaust for example.

Xijit
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Xijit

oh lordy …