Intellectual Property and Video Games
There are many aspects of video games that are protected as Intellectual Property. Video game characters are among the most valuable creative assets in gaming, and they are protected through an intellectual property (or IP) strategy.
Popular Video Game Characters
Super Mario:
Mario is by far one of the most recognizable and well-known icons in pop culture and video game history, Mario is the face and major mascot of the Japanese video game company Nintendo. Both his design and personality are iconic and established in the realm of fiction, so it is to be expected he is protected by trademark and copyright protections. The U.S. trademark registration is Serial Number 87150336 and Registration Number 5269241.
Master Chief
Master Chief is one of the most iconic video game characters of all time, and therefore the character’s IP is extremely valuable. The U.S. trademark Registration Number is 3100706 and the Serial Number is 78657796.
Inklings (Splatoon)
Inklings are a fictional race of humanoid squid/octopus people present in the world of Splatoon, a game created by Nintendo and distributed exclusively for play on Nintendo Switch and its family of systems. The name Splatoon is registered as a trademark. The characters do not seem to be registered, likely because the focus is on a collection of characters, and there is no main character in the game. The Splatoon US trademark registration Serial Number is 86305105 and the Registration Number is 4791747.
Video game attorney Darius Gambino explained to us various intellectual property aspects of video games, including copyrights, trademarks, and elements relating to characters.
Protecting Intellectual Property of Video Game Characters
Companies and independent artists all want their IP protected against unlawful use of their characters. Copyright law secures the unique artistic expression embodied in the characters’ designs, personalities, and storylines. That means the specific visual rendering, detailed attributes, and narrative choices are safeguarded once fixed in a tangible medium. “Copyright law protects original works of authorship fixed in a tangible medium of expression. 17 U.S.C. § 102(a). While fictional characters are not explicitly listed as a category of copyrightable subject matter, courts have long recognized that sufficiently distinctive characters are entitled to copyright protection” (Engfield 2024).
Courts use two tests to determine if a character is protected by copyright law:
The first test is “‘The ‘Story Being Told’ Test. Under this test, a character is only protected by copyright if it ‘constitutes the story being told’ and is more than just a ‘chessman in the game of telling the story.’ Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954). Classic examples of characters that meet this high bar include James Bond, Sherlock Holmes, and Tarzan” (Engfield 2024).
The second test is the “The ‘Character Delineation’ Test. This test looks at how extensively developed a character is in terms of physical appearance, personality traits, abilities, mannerisms, and other defining attributes. The more distinctive these elements are, the more likely the character is to warrant copyright protection. Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989)” (Engfield 2024).
In addition, as noted above, trademark law may protect characters that serve as source identifiers, helping to reinforce a brand’s identity when the character is used on packaging, merchandise, or promotional materials. (In rare cases, elements of a character’s design might also be eligible for design patents if they meet the necessary requirements.) “The key is that the trademark covers only the character's use as a mark in commerce, not as a creative work. So while others may be free to copy the character from an artistic standpoint once the copyright lapses, unauthorized use of the character as a brand could still constitute trademark infringement” (Engfield 2024).
Popular characters often have multiple trademark registrations. It's not uncommon to find a large number of trademarks for one character or logo corresponding to various classes of products or services (e.g., video game software, merchandise, digital content, etc.). “Many fictional characters are covered by both copyright and trademark, which can lead to some complex interactions between the two areas of law. In general, courts have held that trademark law cannot be used to extend the duration of copyright protection after a work enters the public domain” (Engfield 2024).
When talking specifically about the outfits of the characters, the clothing or costumes designed for video game characters are, in many cases, more than just mere accessories, they contribute significantly to a character’s unique identity. Legally, if these costume designs are original and unique, they can become part of the character’s overall copyrighted expression. However, generic clothing designs or outfits that fall into “stock” categories might not be able to get separate protection. “Visual characters like comic book superheroes tend to have an easier time meeting these tests compared to purely literary characters, since their appearance is clearly defined. But a richly described character in a novel can also be protected by copyright if it is sufficiently distinctive and well-delineated. It's important to note that copyright only protects the original, creative expression of a character, not the underlying idea” (Engfield 2024). For example, something like the fighter pilot costume in the movie “Top Gun Maverick", while it can said to be distinctive, it is not synonymously associated with Maverick when seen, as many characters in media and military are also seen wearing similar outfits, so it is not nearly unique enough to be exclusively associated with said property. However, when a distinctive costume becomes synonymous with a character’s image, elements of its design might also be protected under trademark law, especially if the outfit is used in merchandise and marketing materials. Game developers are therefore advised to document and register uniquely designed attires as part of their broader character IP portfolio to prevent imitators from capitalizing on their creative works.
Angelo Alcid
To learn about legal issues surrounding the protection of video games, their characters, and IP as a whole, we interviewed Angelo Alcid. Mr. Alcid is an experienced video game industry attorney at Xbox Game Studios with experience in both IP portfolio management, and both inbound and outbound licensing.
In the interview clips below, he discussed IP and copyright protection for iconic characters and Microsoft’s protection practices.
Other Elements of Intellectual Property in Video Games
Video Game Music
Video game music is a critical and immersive element of the gaming experience and is protected much like any other musical work. The musical composition in games, which include the melody, harmony, and lyrics and the recorded performance are both safeguarded under copyright law. “In the United States, the underlying source code, and the game's artistic elements, including art, music, and dialog, can be protected by copyright law” (Parkin/Wikipedia 2012). Mr. Alcid said video game music, like other music or the game itself, is protected by copyright law, meaning the composer or copyright holder has exclusive rights to their work, including the right to reproduce, distribute, and perform it. Unauthorized use of copyrighted music in video games, or in other contexts like YouTube videos or live streams, can lead to legal penalties and damages.
Background Art Protection
The background art of a video game includes detailed environments, landscapes, or/and atmospheric designs. It is a powerful contributor to the game’s overall immersive experience and is therefore protected under intellectual property laws. Background art is automatically safeguarded by copyright law as soon as it is fixed in a digital medium. This protection covers the unique style, composition, and creative elements that define a particular game’s aesthetic. Beyond mere decoration, background art often establishes the mood and narrative tone of the game, making it an invaluable asset. Legal protection helps prevent unauthorized reproductions, works that copy, and commercial exploitation by third parties.
Trademarked Logos
Video game logos often become the images you most associate with the brand or game. It “is the graphical representation of the name or the theme of the game. It can be stylized, colorful, or iconic. For example, the ‘Call of Duty’ logo features a skull with a bullet hole, while the ‘Super Mario’ logo features a red M with a star” (Ross 2023). When a logo is created with originality and is used to identify and distinguish a particular source of goods or services, it can be registered as a trademark. This not only prohibits competitors from using similar designs that could cause consumer confusion but also adds an extra layer of protection by associating a distinct visual look with a specific product. “Other examples of fictional characters with both copyright and trademark protection include Batman, Spider-Man, Darth Vader, Hello Kitty, and many other iconic figures from literature, film, TV, and comics. The key is that the character must be sufficiently delineated and distinctive to qualify for copyright, while also serving as a unique source identifier to function as a trademark” (Engfield 2024). Simultaneously, the artistic nature of a logo design is protected by copyright law, ensuring that any unauthorized reproduction or adaptation can be legally prosecuted. This combination of trademark and copyright protection makes a logo a useful asset in maintaining the unique identity and commercial value of a video game's brand and the characters associated with it.
Cross-Jurisdictional Protection: Philippines and U.S.
Intellectual property rights are supported by international agreements and reciprocal legal protections. For instance, a video game like Until Then, developed in the Philippines, benefits from the country’s Intellectual Property Code, which protects original creations as soon as they are fixed in a tangible medium. “In the Philippines, copyright protection for artistic, literary and derivative works lasts during the lifetime of the author plus 50 years after the author’s death” (Federis & Associates 2013). While copyright protection is recognized internationally, other forms of IP like trademarks and patents generally require separate applications and registration in each jurisdiction for proper enforcement. Therefore, a developer in the Philippines must register their trademarks and pursue U.S.-specific filings to ensure that their game’s characters, logos, and other creative elements remain shielded against infringement on U.S. soil. In Until Then’s case, they gave the IP publishing rights to the American publishing company, Maximum Entertainment, which distributed the game to sellers who currently hold the trademark information according to Steam.com. One of the characters from the game that is under the protections of Filipino copyright law is Catherine (Cathy) Portillo, one of the main characters from Until Then, a game designed and made by the Philippine based game studio Polychroma Games. Cathy is seen with usually a bright attitude and friendly demeanor towards her friends and classmates throughout the game. She will take any opportunity to tease and banter amongst them; she's often seen goofing around or playing games. Her story brings light to the struggles of mental health, abusive and overbearing family, and the fear of growing up and uncertainty of the future.
Mr. Alcid discussed issues that can come up especially for smaller companies when protecting their IP overseas.
References
Engfield , Nyall. “Protecting Fictional Characters through Trademark and Copyright.” TrademarKraft, 11 June 2024, trademarkraft.com/blogs/news/protecting-fictional-characters-through-trademark-and-copyright.
Copyright in Characters: What Can I Use? (n.d.). Aspect Law Group | an Arts and Entertainment Law Firm. https://www.aspectlg.com/posts/copyright-in-characters-what-can-i-use
Intellectual property protection of video games. (2021, July 29). Wikipedia. https://en.wikipedia.org/wiki/Intellectual_property_protection_of_video_games
Ross, A. A. (2023, October 23). Trademark Rights in Video Games: Protecting the Brand - The Trademark Place. The Trademark Place. https://thetrademarkplace.com/trademark-rights-in-video-games-protecting-the-brand/ https://thetrademarkplace.com/trademark-rights-in-video-games-protecting-the-brand/
Copyright Law in the Philippines | Federis. (n.d.). Federis & Associates Law. https://www.federislaw.com.ph/faqs-resources/copyright/
Until Then on Steam. (2024). Steampowered.com. https://store.steampowered.com/app/1574820/Until_Then/
SPLATOON Trademark of Nintendo of America Inc. - Registration Number 4791747 - Serial Number 86305105 :: Justia Trademarks. (2021). Justia.com. https://trademark.justia.com/863/05/splatoon-86305105.html
MASTER CHIEF Trademark of Microsoft Corporation - Registration Number 3100706 - Serial Number 78657796 :: Justia Trademarks. (2016). Justia.com. https://trademarks.justia.com/786/57/master-78657796.html
M Trademark of Nintendo of America Inc. - Registration Number 5269241 - Serial Number 87150336 :: Justia Trademarks. (2017). Justia.com. https://trademarks.justia.com/871/50/m-87150336.html