The computer games market has been growing faster and faster in the recent years, and with it – numerous legal problems are growing. Main issues that are most often becoming the proverbial bone of contention include trademarks and copyright infringements.
We have already discussed the importance of trademarks in games and the importance of trademarks for manufacturers and creators in previous articles [“Trademarks in computer games”; “Let’s play”].
The market for computer games
To illustrate how dynamically the industry is developing, it is worth quoting the research conducted by Newzoo, covering the year 2017. They showed that already then the gaming industry generated an estimated revenue of $116 billion. In comparison, TV streaming revenue was $105 billion, film $41 billion and music $17 billion. Bearing this in mind, it is worth keeping up to date with changes in legal regulations, as well as the restrictions they impose or the opportunities they bring.
Recording fragments of games up to 20 MB
An interesting issue worth noting in this context is the amendment introduced on 1 October 2017, concerning EU trade marks, introducing the possibility of registering multimedia trade marks. It may seem a trifle, but for the computer games market a kind of gateway was created to register fragments of games up to the size of 20 MB. This gives an opportunity to protect original solutions from being “cloned” by other producers and creators. This includes a unique movement of the camera or a specific representation of the characters. Thanks to such elements, the game acquires a unique character and stands out on the market, and thus, becomes recognisable by consumers.
In this context, it is worth mentioning that the first mark of this kind has been applied to the European Union Office for Intellectual Property (EUIPO, application no. 017282203). It shows the shooting snipers, but first of all, focuses on a rather specific way of presenting the shot sniper. This mark is still under examination by the Authority, but the decision may have a significant impact on the whole gaming market.
Realism in the game has its limits?
While remaining in the subject of signs, let’s pay attention to another matter that took place in 2017. The VIRAG vs. SONY case is particularly interesting because of the court’s argumentation. SONY is the producer of a very popular game “Gran Turismo”. Its popularity is based mainly on the special effects used in the game, but also on a very realistic reflection of the racetrack (specifically: Autodromo Nazionale di Monza racetrack in Milan). Due to its realism, all banners of sponsors, i.e. their trademarks, including the VIRAG logo, are presented on the track. The case was mainly based on the allegation of VIRAG that SONY, by using their logo without their consent, gave the wrong impression that the company was involved in the production of the game. In addition, they accused SONY of being enriched by unauthorised use of the logo. Quite a significant factor in this case is the fact that there are 16 million copies of “Gran Turismo” 5 and 6 sold globally.
The court ruled that SONY was right in the dispute. It argued that the company used the logo in question for artistic and expressive purposes, not for promotional purposes. In addition, it indicated that SONY is entitled to do so on the basis of the first amendment to the US Constitution, and thus on the basis of freedom of expression. This surprising argument is a kind of reference point for similar cases taking place in the United States.
When creating a computer game, you should also take copyright regulations into account. In this context, what is interesting, is the case of copyright infringement in the form of use of the so-called “Carlton Dance” (a short dance composed of around three characteristic moves) in the game “Fortnite”, produced by Epic Games.
This dance was performed by Alfonso Riberio in the TV series ‘Hoax in Bel-Air’ and is therefore considered to be its creator. In order to protect his rights, he decided to take legal action because he believes that a game supplement containing these three steps infringes his copyrights. However, in mid-February, the US Copyright Office said that ‘a short, uncomplicated dance cannot be protected by copyright’.
What is more, the Office pointed out that there is another disputed element here. Namely, it is doubtful whether it is possible to attribute the authorship of dance to this particular actor. In the credits of the series he is not mentioned as a step-maker, and the movements themselves were created for a series produced by NBC. However, this is not the end of the matter, since the court that will ultimately settle the dispute may present a different view from that presented by the Office. In addition, 2 Milly (Milly Rock) and Backpack Kid have also filed claims against Epic Games, who, like Alfonso Riberio, have also filed with the Office to extend copyright to their dance steps, which have also been used in the game. We can only wait patiently for the future of this case.
As you can see, the issues of computer games in the context of copyright and trademark law are complex. It seems that the law is trying to keep up with the dynamically developing market. In addition, the numerous disputes that arise in this context are often extremely complicated, bringing lawyers a very interesting matter for analysis.