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Dear Jas 2: Respecting intellectual property
Jas Purewal is a games lawyer at Osborne Clarke and writer of Gamer/Law. This is the second of a series of guest posts answering your questions about games development and the law. Got a question for Jas? Ask him!
Q: How much do I have to change my game for it not to infringe another game?
Image from Sopio card game, used with permission
A: Ah, one of the most frequently asked questions in games development. Sadly, there’s no absolute rule that will help in this situation. This is because ‘games’ are made up of at least three different kinds of IP rights – copyright, trade marks and patents (there’s more than just those three, but these are the most valuable/frequently seen rights), each of which have different rules:
Copyright protects the biggest part of a game: the sound, graphics, code, script etc. The test for copyright infringement is whether game X copies “all or a substantial part” of game Y. This is a test of quality and not quantity: i.e. in order to work out whether X copies “all or a substantial part” of Y, it’s not a question of whether they’re say 50% or 77% similar, but rather a question of looking at what has been copied and working out how qualitatively important it was to the original game. As a result, in many copyright cases there has been a finding of copyright infringements even though the thing copied was actually very small. That said, some things aren’t protected by copyright at all – like the game idea itself, or its game mechanics. You can read more about copyright and games here.
Trade marks protect the name/brand/goodwill in a game (the Apple logo is a trade mark, for example). If you make a game with a similar name or logo to an existing game, you could face legal action even though you’ve tried to make your logo a bit different to the original. That’s because, very simply, the test for trade mark infringement is whether the two games are identical or similar and there is a “likelihood of public confusion” between the ‘marks’ (i.e. the name or logo) of the two games. So, again, it doesn’t matter by what % you tried to change them: if that legal test is met then you’re in trouble. You can read more about trade marks and games here.
Patents can be the final main IP ingredient in a game. Patents protect inventions basically: generally you can’t get patent protection in software in Europe except in very limited circumstances, but it’s much easier in the USA. Patents are really complex, but I’ll just say this: if someone owns a patent in an aspect of a game or other software, and feels you have infringed that patent, it doesn’t matter what you try to do – you could still face legal action. You can read more about patents and games here.
So: for copyright, the test is more about the relative importance of what’s copied to the whole work, not whether it constitutes X% or Y% of that work. So think about how important the thing you are copying is overall. Regarding trade marks, if you make a game which is at risk of being confused with the original game you could face legal action – so give it another name! And as for patents, well, I wouldn’t worry too much about them: it’s pretty unlikely you’ll ever face a patent claim and, in any event, there’s not much you can do to reduce that chance anyway – so worry about it if it ever happens.
Jas Purewal is a games lawyer at Osborne Clarke and writer of Gamer/Law. This is the second of a series of guest posts answering your questions about games development and the law. Got a question for Jas? Ask him!
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