Intellectual property, in its simplest sense, refers to the creations of the mind, i.e., inventions, literary and artistic works as well as symbols, names and images used in commerce. Intellectual property rights are like any other property right inasmuch as they allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from the authorship of scientific, literary or artistic productions.
Intellectual Property Rights are protected under the laws under their various classifications, such as Copyright, Patent, Trademarks, which provides people the legal basis to earn recognition or financial benefit from what they create or invent. In recent years, the exceptional pace of innovative and technological advancement of the video gaming industry has brought to light and accentuated the grey areas in the law pertaining to the protection of intellectual property, as it applies to video games, especially copyright.
The launch of the first mainstream game console by Nintendo in 1985 was followed by a rapid and exponential expansion in the video game industry which is now a major global industry worth over US$100 billion. Moreover, the gaming industry is the fastest growing sector of the entertainment industry, playing an important role in economic growth by the creations of millions of job opportunities for creators and engineers. Unlike other creative industries, video games draw on the worlds of both technology and creativity inasmuch as they fuse cutting-edge technology and imaginative artistic expression. The computer code underlying a game transforms idea into rich expressions of visual art which come alive on a range of devices – consoles, computers, tablets and smartphones. The main distinctive feature that sets the video game industry apart from other creative industries is the speedy growth and expansion of the industry along with the unique and intricate ways in which it stretches the boundaries of the intellectual property law system. It must be noted that the intellectual property law regimen was designed and implemented many decades before the advent of the video gaming industry. Furthermore, since there has been no specialized legislation focusing on the intricacies of the gaming industry, it is left to the Courts to adjudicate upon disputes arising out of infringement of intellectual property rights with respect to video games.
The fundamental aspects of copyright are squarely applicable to video games based on Article 2 of the Berne Convention despite uncertainties underlying the same. As in the case of a literary, musical or artistic work, the idea behind a video game cannot be copyrighted, just the particular expression and manifestation of it. For example, although Nintendo owns the copyright for Mario, which means it owns the copyright over the way Mario looks and sounds, Nintendo does not own the copyright over Italian plumber-theme video game characters.
However, imitation mobile games that attempt to duplicate and profit off the success of popular video games often blur the distinction between idea and expression. An early example of such imitation was a case pertaining to a clone of the well-known game Pac-Man called K.C. Munchkin, which triggered one of the earliest video game copyright lawsuits in 1982 in the case entitled Atari, Inc. v. North American Philips Consumer Electronics Corp. , whereby the Court determined the existence of infringement based upon the expressive element of the games. In another early case, dating back to 1981, titled Atari, Inc. v. Armenia, Ltd. , the Court reached a determination of infringement again based on the identical expressive elements of the games.
The Courts, while dealing with copyright disputes arising out of video games, usually apply the following test in determining whether one video game infringes upon the rights of another: whether the two games are based on the same idea, which means no infringement, or whether there is something more in common, which may be possible infringement. The US Copyright Office explains the application of copyrights on games thus, “Copyright does not protect the idea for game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.”
Another case of an entirely different complexion that arose with regard to copyrights and video games is that of the Carlton Dance, whereby one Alfonso Ribeiro brought a lawsuit claiming infringement of his copyright against Epic Games. Briefly, Mr. Ribeiro played a character named Carlton in a 1990s TV series called ‘Fresh Prince of Bel-Air’, wherein he performed a dance. The crux of the controversy, as Mr. Ribeiro alleged, was that Epic Games had included a strikingly similar dance move in its immensely popular online game Fortnite; and had violated his pending copyright and right of publicity pertaining to that particular dance move. Mr. Ribeiro claimed monetary damages in his lawsuit, but ultimately the US Copyright Office determined that the Carlton Dance wasn’t copyrightable.
Several other performers had also filed their own separate lawsuits against Epic Games, alleging that Epic Games had infringed the copyright of the performer by using a copy of the dance created by said performer. However, the Supreme Court of the United States, in an unrelated case entitled Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC , ruled that a plaintiff cannot sue for copyright infringement unless the United States Copyright Office had issued a copyright registration. The aforesaid ruling effectively ended the application approach, whereby a person would sue for infringement while the application for registration of copyright was pending with the Copyright Office, the practice having arisen due to the norm of the Copyright Office taking many months to process an application for registration of copyright. The performers who had filed their lawsuits against Epic Games withdrew the same as their dances were not registered and announced that they would refile their complaints after the Copyright Office had issued the necessary registration. However, the Copyright Office subsequently determined that two of the plaintiffs’ dance moves did not meet the criteria required for a dance to be registered and rejected the applications. It may be noted that although the Copyright Office does protect “choreographic works” which it defines as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and “a story, theme, or abstract composition conveyed through movement.”, it does not extend that protection to “social dance steps and simple routines”.
Only a few years ago, the majority of video games were played on gaming consoles which were sold mainly through retail outlets. While the physical console and computer sales still generate a substantial proportion of industry revenue, the advent of games played on mobile devices has become the fastest growing sector in the industry in this age of smartphones. Digital distribution of games has expanded exponentially with the rapid expansion of connectivity.
The whirlwind growth and expansion of video games has created its own fair share of challenges between the producers of video games and affiliated hardware and the producers of online games. Recently, the American subsidiary of Japanese video game developer Nintendo filed a complaint alleging copyright and trademark infringement against the operator of a website offering pirated copies of read-only memory [ROM] files extracted and collected from Nintendo cartridges without authorization. It must be noted that Nintendo manufactures video games consoles as well as the cartridges containing the video games to be played on the console. The complaint filed by Nintendo stated that the website operator was offering the pirated copies of the unlawfully and wrongfully extracted games online which could then be played on any computer or mobile phone program emulating and imitation the functions of the physical video game consoles manufactured by Nintendo. The case in question resulted in the shutdown of the websites offering the pirated copies of the games and was subsequently settled by the website operators with Nintendo for a sizable sum. The said settlement also contained a permanent injunction against the operators of the websites and return of all Nintendo ROM files extracted unlawfully and wrongfully. The aforementioned issue is known as ROM piracy and it opens up a variety of challenges for the rights holder and the authorities.
In light of the preceding discussions, it may be clearly inferred that the intricacies and technicalities pertaining to and arising out of video games are boundless and diverse. Since the video game industry is making phenomenal advances in scale and magnitude and adding novel and unique elements to various aspects of game-play, the boundaries of interpretation and implementation of the protection afforded under the intellectual property law to various aspects of the gaming industry shall continue to be pushed and tested. It remains to be seen whether the governments around the world truly recognize the immense economic potential of the video gaming industry and fine tune the well-established intellectual property law systems to suitably and properly resolve and overcome the multifaceted challenges and various dimensions of the video game industry.
 Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)
 Atari, Inc. v. Armenia, Ltd., 2 COPYRIGHT L. REP. (CCH) 1 25,328 (N.D. Ill. Nov. 3, 1981)
 Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019)