Game Characters and IP Protection

Why is proper IP creation necessary? 

To prevent others from using characters similar to a created one, the character must be sufficiently distinct. Proper IP creation is crucial not only for claiming ownership but also for ensuring the creator retains control over how their work is used. Without this protection, other companies or individuals may exploit the work. Such exploitation may include duplicating, selling, or incorporating the creator’s assets into other projects without permission (Hill 2021). Creators can apply copyright notices and licenses to deter infringement and define lawful use of their intellectual property. This is especially relevant in video games, where End User License Agreements (EULAs) outline the terms under which users may access and use game content. Such agreements can also help prevent unauthorized data mining, enhancing security, especially against AI models that may extract and misuse character data (Irvin 2023).

Another reason proper IP creation is necessary is to ensure that game characters are independently protectable under copyright law. For a character to qualify for copyright protection, it must be sufficiently delineated and not be a stock or generic figure. Courts often apply the “story being told” test, which evaluates whether a character is essential to the narrative and is distinct enough to be protectable (Crown LLC 2021). This ensures protection is granted only to characters with original, specific traits rather than those based on common tropes, such as the archetypal wise old man. These legal tests, originally applied to literary or cinematic characters, are also relevant to characters in video games.

For a game, this would mean that not every character is immediately protected. For instance, in a war-themed game, generic soldiers would not typically qualify for protection unless they are given detailed backstories or unique characteristics. A captain with a proper name and backstory would have a higher chance of being protected. A character who drives the narrative, possesses a distinctive personality, and has a unique visual design is more likely to receive strong legal protection. For example, James Bond remains protectable despite being portrayed by multiple actors, as his character is consistently defined and distinct even though he represents a common spy archetype (Crown LLC 2021).