Intellectual Property for Game Developers - Identifying and Protecting your IP

Wednesday 17 January, 2024

For game developers, intellectual property (IP) is the core of your business. Using your IP to generate revenue for your business provides the fuel for your future development. There are a multitude of different ways to commercialise your IP, but the first steps are to identify the full scope of your IP and secure your rights and ownership.

Identifying your IP

The first step in making the most of your IP is identifying the IP that you either own, or otherwise have access to, and the different forms it takes. It’s commonly understood that the works you create are the core of your IP, but to put yourself in the best commercial position you always be thinking about the full picture:

1. Creative works

Everything you (and your employees and contractors) create is a potential IP asset. The most obvious asset is the end product, the games you create. However, this is far from the be-all and end-all – in the course of creating a game, and working in a creative and technical field, you will inevitably produce a broad range of other IP, both directly and indirectly relating to your games, including:

• art assets;
• concept art;
• stories;
• music;
• custom software tools and game engines.

Each piece of IP you create should be identified and recorded to ensure you know what you own and control. This puts you in the best position to protect your IP and gives you access to more ways to commercialise and strengthen your business.

2. Founder and Employee Skills and Knowledge

The foundation of a game development studio lies in the skills and knowledge of its founders and employees. This includes not only the technical expertise but also the creative insights that contribute to the uniqueness of a game. Identifying these individual contributions is vital to understanding the full scope of your IP assets and ensuring these are working for your business.

3. External Licenses

Unless you’re building everything in your business, down to your computers’ operating systems, from scratch, you’ll be using software, tools, assets, or other IP owned by other parties.

Understanding the terms of your external licenses, especially those related to open-source software, is essential. Developers must ensure compliance with licensing agreements and be aware of any restrictions that may affect the use or distribution of their games. You don’t want to get to the point of selling your game and find you have to give a disproportionate cut to a third party, or release a game for free under open-source terms you didn’t realise you’d signed up to.

4. Public Domain IP

Beyond IP that you develop or explicitly licence from others, you also have access to works in the public domain.

While public domain materials are free to use, it's important to confirm their status and be cautious of potential legal complications.

Protecting your IP

Once you have identified your IP, you should have a strategy to make sure it remains yours, and you can stop others from misusing it.

5. Copyright

Copyright subsists in your creative works from the moment they’re created. That’s why it’s so important to make sure you record what, and when, you create, as these are key elements in stopping third parties from misusing your works. Copyright doesn’t need to be formally registered, but having an internal register of your copyright assets can be extremely valuable.

The second part of protecting your copyright is making sure your claim to ownership is watertight. That means making sure that all of your employment and contracting agreements are clear that you are the owner of any copyright (and other IP) created in relation to your game and business, and that if you buy or are assigned any IP that assignment is properly documented and recorded.

6. Trade Secrets and Confidential Information

Anything that you don’t need to show or disclose to external parties can be protected as a trade secret. In terms of game development, that can include proprietary algorithms, unique gameplay mechanics, or the unique ways you might run your business and development processes. Implementing appropriate internal policies and confidentiality agreements can safeguard these secrets from being disclosed or misappropriated.

Confidentiality, or non-disclosure, agreements (NDAs) are powerful tools for protecting sensitive information when collaborating with external partners, contractors, or during discussions with potential investors. Clear and comprehensive NDAs can prevent unauthorized disclosure and use of confidential information, and your trade secrets

7. Registered IP – Trademarks, Patents and Registered Designs

Registering trademarks for game titles, logos, and distinctive features can provide you with an easy path to enforcing your legal rights and avoiding consumer confusion.

Patents may be attainable for unique and innovative game mechanics

Registered designs can protect the visual appearance and UI/UX of games and other software.

Strategic use of these legal tools can fortify a developer's position in the market. As registrations operate on a national or regional basis, you should consider where your key markets are, or will be, and the appropriate protection in each market. 

Identifying and protecting your IP is an ongoing process, and is key to building a successful and sustainable business in any creative industry. Once you know what your IP assets are, and are secure in your ownership, you’re in the best position to explore the multitude of ways to generate revenue from those assets.