The protection of video games is an important issue, as this field is constantly growing, and competition is fierce. Indeed, it is necessary to stand out, however, there is a risk that a competitor will copy characteristic features of the game: it is, therefore, essential to consider the protection and defence of your rights.
1) How to protect my video game?
A video game is a complex set of several elements of different natures: the software, the visual elements, the music, the name, the gameplay, the technical device, etc. Several types of protection can be envisaged through intellectual property law.
Intellectual property (IP) law confers exclusive rights on some types of creations for a certain period. These are materialized creations since ideas cannot be protected under this right. IP law concerns both artistic and industrial creators. The advantages of holding private rights are that the holder of the rights can bring an action for infringement should his/her creation be copied, and that the creation can be valued as an intangible asset.
- Protection of the visual and audio elements of the video game:
- Copyright for the graphic, textual, audiovisual, and musical elements of the video game:
This right protects intellectual works, which cover a wide range of creations: texts, books, drawings, music, films, certain elements of software, etc… For video games, the following elements could benefit from copyright protection:
- The database (its architecture, i.e., the structure of the database);
- The music and sound effects;
- The graphic elements (the logo, the settings, the characters, the objects, the graphic interface…);
- Videos and animations;
- Multimedia and audiovisual content (combining sound and image or video);
- The interactive and narrative scenario;
- The manual.
It is an exclusive intangible property right opposable to all. It provides economic rights valid for 70 years and perpetual moral rights over the works.
Copyright protects the form of creations provided that they are original, i.e., that they bear the imprint of the author’s personality. Copyright is automatically acquired by the mere fact of the materialisation of creation, there is no need to register it.
However, it is advisable to constitute proof to be able to attest the date and ownership of the creation, using the means of proof of anteriority, such as the Copyright.eu certificate.
For more information on this point: copyright protection.
- Design law for some graphic features of the video game:
The aesthetic aspect of video game (icons, characters, symbols, logos…) can be protected by a design right. This right protects the appearance and ornamentation of an object, i.e., the lines, contours, colours, shapes, and textures. This could be the case, for example, with characters, objects or settings in a video game.
This right arises through registration with the French National Institute of Intellectual Property (INPI). To benefit from this protection, strict conditions must be met: the creation must be new, have a distinctive, visible, and lawful character, and must not be dictated by technology.
After registration, the holder has a 5-year monopoly of exploitation from the date of filing, which can be extended to 25 years. For more information on this point: protection by design law.
However, many of the designs benefiting from design rights are already protected by copyright. This is the theory of the unity of art: an object with a particular aesthetic, regardless of its use, benefits from copyright provided that it is original. See our article on the complementarity of these rights.
- Protection of the name and packaging of the video game:
The name of the video game, as well as other elements (icons, characters, symbols, logos…) can be protected for their distinctive function under trademark law. A trademark is a sign that distinguishes a company’s products and services dfrom those of competitors.
Trademark law grants a monopoly of exploitation of the trademark for the goods and services designated by the applicant. To be protected as a trademark, the name or logo must be registered with the French National Institute of Intellectual Property (INPI). The trademark must meet the conditions of distinctiveness, availability, and lawfulness. Protection is valid for 10 years and can be renewed indefinitely. To find out more: trademark law.
- Protection of the video game’s software:
The software behind the video game, i.e., the program (source and object code) and the preparatory design materials are protected by specific software copyright. Elements such as the algorithm and functionality are not protected but may be covered by an unfair competition action in the event of improper use, under certain conditions.
This protection grants economic rights valid for up to 70 years after the author’s death (right to control exploitation, distribution, prohibit the use, adaptations, etc.) and moral rights (right of attribution, right to respect for the work, etc.) which are perpetual and non-transferable. However, specific exceptions exist.
One of the particularities is that copyright ownership of software created by employees is vested in the employer(unlike traditional copyright, which provides that ownership of rights is vested in the author of the work).
This protection is automatic, with no filing formalities, provided that the software is original and materialized: the author of the software must have made an intellectual contribution of his own, other than mere intellectual know-how and the technique deployed.
However, it may be difficult to prove the date of creation or who the author is, However, it may be difficult to prove the date of creation or who the author is. It is therefore advisable to obtain evidence to prove the date and ownership of the creation, using proof of anteriority,such as the Copyright.eu certificate.
- Protection of the content of the video game database:
The database of a video game is protected in two ways: by classical copyright (as presented above) and by the sui generis right of the database producer.
This law specifically concerns database producers, i.e., the entity or individual that takes the initiative to invest.
Here, it protects the content of the database provided that a financial, material, or human investment is made, which must be substantial, qualitative, or quantitative for the constitution, verification, or presentation of the content of the database.
The resulting rights are valid for 15 years , and renewable with each new investment. They allow to prohibit the extraction or re-use of all or a quantitatively or qualitatively substantial part of the contents of the database.
In addition to keeping any element that can demonstrate such investments, the formalities for securing these rights are the same as those set out above for copyright: proof of anteriority.
To find out more: database protection.
- Protection of the video game’s technical features:
In rare cases, video games may contain technical and innovative features. These could then be registered as a patent. A patent allows the protection of a product or process providing a new technical solution to a given technical problemand grants a 20-year operating monopoly.
Registration with the French National Institute of Intellectual Property (INPI) is necessary. Strict conditions must be met to benefit from this protection: novelty, inventive step, and industrial application. To find out more about this point: patent protection.
- Protection of the game mechanism: the gameplay of the video game:
As mentioned above, ideas cannot be protected under intellectual property law. The rules of a game are still ideas or concepts and cannot be protected as such.
The question now arises as to the protection of the gameplay. This is the mechanics of the game, i.e., how the player can control a character and decide how he or she will interact with the game environment and the way the game is played. It is the player’s experience. This element is central to the success of the game but falls closer to the idea/concept.
However, judges have been able to recognise that gameplay can be protected under copyright law (TGI Lyon, 3rd ch., 8 September 2016, Atari / Raynal). As protection is possible, securing the gameplay is, therefore, to be considered.
2) How to secure my copyright with the Copyright.eu service?
The Copyright.eu anteriority certificate enables you to prove that your creations existed at a certain date, and that you are the author. This type of service is important, as seen above, for creations that depend on copyright, but also for securing innovative concepts and elements that cannot be protected by intellectual property.
It is, in fact, essential to obtain proof of anteriority to be able to prove that you are indeed the author of your creation at a certain date. This makes it easier to claim your copyright, particularly in the event of future copying or challenge by a competitor or in the event of a dispute over confidentiality.
For a video game, this could consist of a deposit of the game software, important visual/audio-visual/sound elements in separate files, the scenario, the gameplay, the architecture, and the content of the database…
The Copyright.eu anteriority certificate provides indisputable proof of anteriority, through the intervention of a Bailiff (depending on the offer selected), but also through the qualified electronic timestamp, which has evidential value, including internationally.
To apply for a Copyright.eu anteriority certificate, the process can be completed online. Please visit the following address: https://www.copyright.eu/depot-copyright-en-ligne/fonctionnement/