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Brittany O’Connor
Professor Tripathi
TWC 451
October 22, 2016
An Overview of Video Game Copyright Law
When settling in for an afternoon of treasure hunting, zombie killing or high
speed racing, the last thing one wants to think about while playing video games are the
history of copyright laws that have impacted this industry and protected the rights of
thousands of artists around the world. However, as is the case with music, movies,
television shows and books, copyright laws are an important part of the manufacture of
the product that we take enjoyment from, and video games are no exception.
Historians mostly agree that William Higginbotham created the first video game
in 1958. The game, “Tennis for Two”, was created to “demonstrate a ballistics computer
at Brookhaven National Laboratory” and was never commercialized nor given proper
intellectual protection by its creator (Branch, et al). The first game to do this, however,
was a game playable on a standard television set called “Chase” and was created by
Ralph Baer. Because of the success of the game, the Atari Corporation soon developed
and released “Pong”, marking the true beginning of the video game industry (Branch, et
al).
Since video games encompass many different forms of copyrightable material
(music, sound effects, art, the software it is designed on, etc.), then how can it be
protected? There are several ways to protect the different aspects of video games, such as

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through trademarks, copyrights, patents and trade secrets. With trademarking, video game
developers are able to protect “any name or symbol indicative of a source of origin of a
product or service – [and] is arguably your most valuable business asset, and is perhaps
also the most recognizable form of intellectual property” (Chang and Dannenberg).
Copyrights are another form of protection that video game developers can get to secure
their property. Copyright protections “protects the actual artwork and sounds in the game
as an audiovisual work, and the underlying source code as a literary work” (Chang and
Dannenberg). This, however, does not protect the ideas behind video game. For example,
think of a game involving a treasure hunter, a mysterious island, monsters and bad guys
to kill. Did you think of the popular game series Lara Croft: Tomb Raider? Or did you
think of the Uncharted? Copyright laws did not prevent the Uncharted series from being
made after the Tomb Raider games, despite how similar they are in nature.
Another form of protection that game developers may take to own their work is
with patents. Patents can apply to video games that have invented new things such as
“any new and useful process…machine…article of manufacture…or composition of
matter, and also includes new ornamental designs” (Chang and Dannenberg). Essentially,
a patent can protect things like game play methods, UI communications, icons,
characters, the storage disk the game is made on and more. Finally, video games can be
protected using trade secrets. Legal action can be taken against former employees who
steal information and pass it on to their new employer, but can be prevented by taking
reasonable precautions such as controlling who has access to what information and
having your employees agree to keep the information secret.

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However, having these protections does not mean a game is protected for good.
For example, after 35 years, a video game’s copyright reaches termination. Section 203
of the Copyright Act “can provide video game creators or developers with potentially a
second chance to negotiate for a bigger piece of revenue” and help them keep what is
theirs (Kane). Also, “Section 203 makes it very clear that if the game was created by an
employee of the publisher, as a work made for hire, or if the rights have bypassed by will,
the termination right does not exist” (Kane). This is why it is essential for game
developers in both game companies and freelancers hired to help with games to know
their rights and how ownership is passed over between publishers and designers.
As the popularity of video games only continues to increase, so too should the
interest of video game copyright law grow amongst modern technical communicators.
The future of video games in the world is very bright, and “while video games players do
skew toward younger and male audiences, a growing number of games are targeted at
older demographics, and women are actually the dominant consumers in particular
market segments” and can be estimated that the “size of the contemporary global market
for video games today is likely upwards of US$40 billion, rivaling the size of the motion
picture and music industries” (Lastowka 3). So not only are there many people involved
with creating and playing games, but also billions of dollars in revenue to be had. As with
any other industry, modern technical communicators need to be familiar with the various
aspects of the laws protecting video game ownership, especially if they find themselves
working in the video game field. Technical writers, as a whole, should be writing clearly,
objectively and without error. If a freelance technical writer does not meet these
qualifications and is called upon by a video game company to write documents for them,

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then they will be of little use. This is especially important for technical writers living
where there are many video game companies located and they wish to be hired by them,
such as by those in California and Washington in the United States and France, Canada
and Japan abroad.
As for the future of video game copyright law, it will only continue to grow and
change, just as the industry itself does. Virtual Reality (VR) is only the latest addition to
video games that will only become more widely available as more and more people get
their hands on it, including those who wish to play the games and those that wish to
develop them. That is why it is critical that there be a single, concise definition as to what
a video game falls under in terms of copyright law. Right now, there is debate amongst
scholars about whether or not video games should be considered “audiovisual works”.
The case for this label is that video games, at their core, are a “series of related images”
which closely follows the definition of audiovisual works around the world (Ramos, et al
10). However, some authors dispute that video games do not belong in this category
because of three reasons. Those reasons are:
(i) the co-authors of these works (generally, the scriptwriters, the
director and composer of the original soundtrack) are not
necessarily the same sorts of authors as those involved in the
development of a particular video game (with character and setting
designers, animation designers, video testers, auto engineers, etc.);
(ii) the rights are requested by producers of video games and
audiovisual works do not always coincide; and (iii) audiovisual

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works involve certain neighboring rights that are not always
present in video games. (Ramos, et al 10)
Because of this division of opinions, it is critical that a clear, definitive definition of how
a video game is categorized in copyright law across the country, if not the world. Until
then, there will continue to be legal problems for game developers around the world as
they try to protect their games and hard work from the hands of shady copycats. Not only
will having a single definition of what a video game falls under help out developers, but
it can also help out lawyers and judges of cases of copyright infringement that go to trial
have a better understanding as to their client’s case.
Video games will always be an integral part of the entertainment business. It is a
multi-billion dollar industry, which provides thousands of people with steady
employment. The importance of what many people might think are just “silly games” to
the global economy is why it is essential for modern technical communicators working
for game companies, as well as video game developers, to know the ins and outs of the
laws of their country surrounding video games. Even technical communicators who do
not work for video game companies should know about this as, most likely, they have
played or know people who have played video games. It can truly make one appreciate
the amount of effort that goes into video game making and, in turn, protecting it. Without
this knowledge, authors of games may not be able to properly protect their work, which
can lead to cheap knockoffs taking away revenue they rightfully deserved. By having this
information in mind, those who make video games for a living, or those who do it just as
a hobby, can learn how to better protect their hard work.

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Works Cited
Branch, John W, et al. “Gaming the System: Intellectual Property Protection for the
Video Game Industry.” Intellectual Property & Technology Law Journal, 4 April,
2006.
Chang, Steve and Ross Dannenberg. “Hey, That’s My Game! Intellectual Property
Protection for Video Games.” Gamasutra. 25 February, 2008.
Kane, Sean F. "Copyright Assignment Termination after 35 Years: The Video Game
Industry Comes of Age." Intellectual Property & Technology Law Journal 26
January, 2014.
Lastowka, Greg. “Copyright Law and Video Games: A Brief History of an Interactive
Medium.” Academia, 2013.
Ramos, Andy, et al. The Legal Status of Video Games. 2013.