Written by Solicitor, Lucy Diggle
The gaming industry has undergone significant evolution in the last decade, revealing itself to be the most dynamic and rapidly evolving sector of the creative industries.
Once a fringe economy catered to a niche demographic of consumers, the modern video game industry is the product of numerous forces; including a global content boom, persistent media convergence and a growing turn to digital distribution. In the contemporary entertainment market, video games have become a key profit centre for media businesses and, accordingly, an investment priority for public funding bodies.
In Australia, the infrastructure around public sources of game funding and investment has developed significantly in recent years. Film Victoria’s 2022 rebrand to ‘ScreenVic’ is a fitting illustration of this growth, with the rebrand reflecting the expansion of screen content and investment across the state, moving beyond film and television to online and digital games.
Despite the increasing prominence of video games, significant confusion continues to surround the question of intellectual property (IP). One of the most frequently asked questions we receive from clients in the industry is: “how is intellectual property relevant to a video game?”.
Video Games and IP
IP is arguably the most fundamental consideration when it comes to video games.
In practical terms, IP is essentially what consumers purchase when they buy a video game, as this purchase grants them a license to partake in the entertainment experience that the game provides.
From an industry standpoint, video games offer fresh IP for adaptation into traditional media forms (eg. the Super Mario Bros Movie, Mortal Kombat etc), as well as a more varied medium to recapture consumer engagement and loyalty with existing IP assets (eg. The Witcher, the Star Wars suite of video games). In a modern entertainment context, as businesses go head-to-head in an arms race for IP, video games are highly attractive.
Copyright
Copyright will safeguard the original expression of ideas where they are expressed in a material form. Copyrightable video game assets can be broken down into two categories:
1. Software Elements
Software refers to a set of instructions (code) that control the operation of a computer program.
Software is defined as a ‘computer program’ under the Copyright Act 1968 (Cth) (Copyright Act), which is treated as a ‘literary work’ as software constitutes a high-level programming language.
The copyright in literary works (subject to any exceptions under the Copyright Act) is owned by the author of the work. In the context of software this would be the programmer (or the gaming studio if the programmer is an employee)!
The software (code) formulated by programmers is known as source code or assembly code, which is essentially readable instructions ascertainable to humans. For the purpose of this article, we’ll focus on source code, the most popular of the two.
There are multiple source code languages that programmers can be trained in, including JavaScript, C++ and Python. I am lucky enough to be trained in all three (No I’m not!).
Source Code vs Object Code
In order for a computer to interpret source code, it must be compiled. Compilation involves the transformation of source code into object code (or compiled code). Object code is essentially the computer language of source code.
Examples:
Source Code: For (let i=o; I < 7; ++i) { Temporal.Now.plainDateIDO().year
Object Code: 011100 00111 1110
Whilst visually different in form (or language), source and object code represent the same set of instructions.
Reproduction of Code Under the Copyright Act
Under the Copyright Act, the right of reproduction is one of the primary exclusive rights granted to copyright holders. This right ensures that only the copyright owner can make copies of their work.
Notably, the Copyright Act provides that reproducing source code is considered equivalent to reproducing object code, and vice versa (s21(5)). This provision addresses potential issues where object code, which is machine-generated and not inherently ‘original,’ could be excluded from copyright protection (and provide a loophole for infringement). To be protected by copyright in Australia, a work must be ‘original,’ meaning (generally) it must be created by a human author and involve some level of independent intellectual effort.
Section 21(5) recognises that although object code itself may lack originality, it is intrinsically linked to the human creativity invested in the source code. Consequently, if you reproduce someone’s object code, the Copyright Act treats this as an infringement of their original source code. This means that an infringer cannot avoid liability by using someone’s object code, a machine-generated asset, where the asset is fundamentally based on human effort and skill (from the source code).
Source Code as a Trade Secret (or Recipe!)
In the absence of strict contractual confidentiality requirements, programmers who grant permission for others to use their code by way of a licence usually licence the object code only.
This is because source code is readable and valuable to humans, whereas object code can only be understood by computers, and is extremely difficult (near impossible) to revert to source code.
If I have lost you, it may be helpful to think of source code as the recipe, and the object code as the dish. The dish reflects the recipe, however it’s near impossible to reverse engineer the recipe from the dish. A chef will protect their own recipe at all costs but will make the dish for others over and over.
A common example where a licence of source code is granted in the gaming industry is where developers licence their code to game publishers, who market, finance and distribute the game.
2. Audiovisual Elements
A. The Complete Audiovisual Product
Certain complex subject matter, such as films (cinematograph films) and songs (sound recordings), are recognised explicitly under the Copyright Act, however video games in their complete, unified form are not. Instead, whilst the underlying code of a video game is categorised as a computer program, a ‘literary work’ as discussed above, the audio-visual component of the game is classified as a ‘cinematograph film’ under the Copyright Act.
The audio-visual footage of a game comprises the gameplay footage. In the world of gaming, this could include the footage at any given stage of development, for example, the prototype, the vertical slice or the alpha gameplay footage.
The principle that gameplay footage qualifies as a cinematograph film originates from the case Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8. Here, the court addressed the challenge of distinguishing video games from traditional films, noting that unlike films, which have a fixed sequence of audio-visual elements, video games are interactive and influenced by user decisions. In fact, many video games involve the user creating their own virtual environment (eg. Minecraft, The Sims). The court ultimately found in favour of Sega Enterprises, ruling that the definition of a cinematograph film under section 90 of the Copyright Act should be interpreted broadly to include the audio-visual footage of a video game. Game over, play on player!
Ownership of Gameplay Footage
The owner of the gameplay footage of a video game will be the individual or entity which made the arrangements for the making of the game. In film this is the producer, in the world of gaming this is ordinarily the game developer.
There are exceptions to this rule, for example where the game is commissioned. Where a video game is commissioned, the person commissioning the video game will be the owner of the copyright (s98 of the Copyright Act).
B. The Underlying Audiovisual Works in the Video Game
In addition to the complete gameplay footage, there are many other underlying copyright assets that form part of a video game. Some of the key ones include:
-The game narration script describing the interactive pathways of the video game (protectable as literary or dramatic works);
-Any sound effects and music (protectable as sound recordings);
-The composition of the music (protectable as musical works); and
-The visual designs such as characters and environmental artwork (protectable as artistic works).
Beyond copyright, other forms of intellectual property may also be relevant to a video game. For example, unique and innovative game mechanics or technologies may be eligible for patent protection, whilst certain graphic elements of a game such as the icons, graphic user interface or characters may be protectable as designs.
Beyond this, trade mark rights are always important to consider.
The Role of Trade Marks
Trade marks act as a badge origin, to distinguish the goods and service offerings of one business from the goods and services offerings of another. In the gaming industry, trade marks help to establish and maintain brand identity.
Registered trade marks grant businesses exclusive rights to their brand names or symbols within specific classes of goods or services.
Goods and services relevant to video games:
-Class 9: Downloadable media and computer software
This class encompasses video games as tangible goods, including downloadable media and software. This class effectively encompasses the digital product the consumer purchases.
-Class 41: Entertainment services
This class pertains to the provision of entertainment services, including the delivery of video games as a form of interactive entertainment. Class 41 embodies the service offering of the entertainment experience to the consumer.
-Class 42: Design and development of software
This class includes services related to the creation, design, and development of software, which covers the development and production of video games by developers.
Examples of some famous registered video game trade marks:
–The Legend of Zelda – a word mark describing the name of the video game
–Mario from Super Mario Bros – a logo mark describing a key character
–Gotta Catch Em All from the Pokémon franchise – a slogan describing a key phrase from the game
In the absence of registration, a brand asset from a video game may still be protectable as an unregistered trademark, provided it has gained significant recognition and distinctiveness in the marketplace through substantial use. Unregistered trade marks are a lot more difficult to enforce, so when in doubt, seek registration.
Chain of Title in Funding and Investment Grants
In most funding agreements, the recipient or applicant will be required to show they own or have the necessary right to acquire all rights and interests in order to produce and exploit the video game. This is also known as establishing clean chain of title, which involves ensuring there is a clear chain of legal paperwork verifying the ownership of the relevant IP assets.
At Studio Legal we are lucky to represent some brilliant independent Australian game studios, assisting them with their intellectual property needs and ensuring compliance with their various development and production grant agreements so they can focus on the build!
Client Shout Out!
On the topic of gaming, we’d like to extend a mention to one of our talented clients, Hojo Studio, on the successful launch of their video game ‘The Godfeather: A Mafia Pigeon Saga’.
The Godfeather is a ‘roguelike saga’ that thrusts users into the mafia pigeon underworld to take back the old neighbourhood. Think: less Al Pacino, more poop and swoop! After supporting Hojo with their IP clearances and chain of title documentation, we’re excited to see the game’s launch.
Further Information
Want to read more about IP and Gaming? Check out these other blog posts we’ve written:
–9 Common Mistakes People Make About Copyright
–Does my Company Own the Intellectual Property Created by its Directors?
If you’re an indie game developer and would like some legal advice, please contact us through our online form or via email at hello@studiolegal.com.au.
Written by Solicitor, Lucy Diggle
Published 5 September 2024.
DISCLAIMER
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.