How Can I Protect My Video Game From Copying?

Learn how trademark and copyright law can protect your video game from would-be copycats.

By , Attorney

Video games are more than distracting fun; they are big business. Whether on mainstream platforms like Xbox or Playstation, or on mobile devices like iPhones and Samsung phones, game designers can make real money. If you design a game, however, what prevents someone else from coming along and copying it? Learn how intellectual property law can protect your creation.

Using Trademark Law to Protect Your Game Name

Warcraft. Fortnite. The Legend of Zelda. It is no secret that video games tend to have catchy and unique names. In many cases, the names include particular characters, such as Super Mario Brothers. In other cases, they use fanciful or evocative terms such as Tetris.

But in all cases, the name of a video game should be memorable to the relevant consumer population. Once you devise such a name, you will want to protect it so that another competitor, a fellow game-maker, cannot steal it. The best way of doing this is to register for federal trademark protection with the U.S. Patent and Trademark Office (USPTO).

By following the USPTO's online guide to trademark registration, you will see that you can register the name of products (such as a game). If you have a company, such as an LLC or partnership entity, you might wish to separately register that name as a trademark at the same time. For example, if your business name is "Wild Games LLC," and your video game is "Into the Wild: Forest of Fear," both of these could be separate trademarks.

Note that you can also register any logo or pictorial mark that identifies the game (or your company) in the marketplace. Among the most famous examples of this might be the green Xbox logo or the "PS" PlayStation logo.

Be conscious of avoiding using profanity or derogatory terminology in your game (whether in the name, the plot, or the characters). To distribute your game, you might need to rely upon third parties, such as the Apple AppStore, which have their own requirements and prohibitions on certain language.

Moreover, if your video game has such language, you could alienate certain consumers, such as parents and smaller children.

Using Copyright Law to Protect Plot, Code, and Characters

Copyright law protects original works of authorship that are fixed in a tangible medium of expression. In plain English, that means that copyright law protects creations that are written down or somehow recorded. Video games actually include many separate elements that could be the subject of independent copyrights.

Copyrights can be registered with the U.S. Copyright Office, the federal agency charged with the administration of copyrights. In a video game, you would be able to obtain separate protections on the illustrations, software code, music/score, and even the script (that is, what the characters say).

An important note: The copyright is, broadly speaking, owned by whoever actually creates the work in question. Many video game designers do not actually make every element of their game. They may hire a musician to create the score, a coder to design the game, an illustrator to render the characters, and a writer to devise an interesting plot. All of these individuals would technically be able to copyright different bits and pieces of "your" game, which you likely do not want to occur.

To prevent any ambiguity, be sure that you have written agreements with these third parties indicating that you are paying them a set fee in exchange for making a work-for-hire. A simple agreement can ensure that you retain all intellectual property rights in whatever that third party contributes to your video game (typically in exchange for payment).

You might wonder whether you can use copyright law to protect the individual characters in your video game. Like all too many legal questions, the answer is "maybe."

Copyright law basically protects only characters who are very heavily defined, typically after they have already appeared in numerous cartoons, movies, or games.

Copyright law also will not protect so-called "stock characters"—those who are generic in their appearance or traits. For example, you cannot obtain a copyright on a blond princess who wears a pink dress. You cannot obtain a copyright on a classic-looking vampire with dark hair and a purple cape. And you cannot obtain a copyright on a muscly superhero with the power of flight. All of these are too generic to qualify for protection, and the Copyright Office would likely reject applications for copyrights on them.

If, however, you develop a deep and highly specific character, and that character appears in many sequential games and other media, it is possible that you could eventually seek independent protection on that character.

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