Clearance in the game development industry – why is it important?

A computer game today is a work comprising dozens of creative layers – code, graphics, music, sound, animation, textures, and often also licensed engines or ready-made asset libraries. Each of these elements may originate from a different creator and be subject to separate copyright protection, which means that the process of ‘rights clearance’ – that is, ensuring that everything included in the game is used legally – is one of the key elements of production. The larger and more complex the project, the harder it is to keep full control over this. The problem of unauthorised use of third-party creative elements has long plagued the industry – dating back at least to the 1990s (Capcom v. Data East, 1994) – and, despite the professionalisation of the production process, it still occurs.

The Marathon case: when an artist’s posters end up in a game

In May 2025, comparisons began circulating online between artwork from Bungie’s new title, Marathon, and posters created in 2017 by independent artist Fern ‘Antireal’ Hook. The comparison centred on cyberpunk-style text and logos – both their layout and content were almost identical to the originals. Bungie confirmed that these materials had indeed been included in the game without the required consent, and identified a former studio employee as the source of the problem. The company announced a review of all visual materials used in the game’s production, the removal of the disputed elements, and changes to its internal verification procedures. The dispute with the artist was ultimately settled out of court, although the terms of the settlement have not been made public.

Unauthorised textures: Juracek v Capcom

A similar mechanism of infringement – this time concerning the game’s graphics rather than its promotion – formed the basis of the case brought in 2021 by photographer Judy Juracek against Capcom USA and Capcom Co. Ltd. According to the claim, the developer had used at least 80 photographs from her book *Surfaces* (1996) without permission, creating textures based on them for games such as *Resident Evil 4* and *Devil May Cry*. The claimant’s argument was bolstered by the fact that the names of the texture files in the game matched the file names on the digital version (CD) of Juracek’s book. The photographer sought $12 million in damages – the case, as in the Bungie case, ended in a confidential settlement, without a substantive ruling by the court.

Copying gameplay: Tetris Holding v Xio Interactive

It is not only the visual aspect of a game that may be subject to infringement, but also the very way the game is played – the so-called gameplay. This is illustrated by the case of Tetris Holding v. Xio Interactive (2012), in which the game Mino, created by Xio Interactive, faithfully replicated the mechanics of the world-famous game Tetris. The judge hearing the case ruled that copyright does not cover the mere idea of a game involving matching falling blocks to achieve the highest possible score. However, she did recognise as protected elements, amongst other things, the 20-by-10-square playing field, the display of ‘block shadows’ showing where a given block would land, the preview of the next block, and the change in colour of the blocks once they had been placed. As stated in the reasoning, Mino had copied all these features, even though they served no other design purpose ‘apart from avoiding the difficult task of creating its own version of a well-known concept’. Despite differences in the graphics, the court found that there was a risk of misleading the public and prohibited Xio from distributing and advertising the game.

How do the courts assess infringements in games?

The cases cited illustrate two different levels at which courts examine copyright infringements in games. On the one hand, there is comprehensive protection – covering the game as a work and the way it is experienced by the consumer (Tetris Holding v. Xio Interactive); on the other, there is protection of individual constituent elements, such as specific graphics or textures (Juracek v. Capcom). In both cases, the starting point is to exclude from the comparison the underlying concept, gameplay mechanics and elements in the public domain, which are not subject to copyright protection. It is only against this background that the court analyses whether there is a substantial similarity between the specific elements of the titles being compared – graphics, maps, character abilities, interface layout – and whether the overall presentation of the game and the player’s experience are sufficiently similar to be misleading.

Summary

In an industry where the pressure to launch and the rush to meet deadlines are part of everyday life, third-party copyright is, unfortunately, often the casualty of this fast pace. With the growth of the gaming market and the increasing number of titles, we can expect to see an ever-growing number of similar disputes; this poses a challenge both for developers and for copyright law itself. A separate, yet increasingly relevant issue is the growing role of artificial intelligence-based tools in the creative process. This will bring further dilemmas – such as the need to distinguish between works generated by AI (AI-generated works) and those created with its assistance (AI-assisted works), but which exhibit sufficient individual creative input from a human.