Posted on Categories creative industry

Legal aspects of the video game industry 2.0

Interest in the game development industry is not diminishing. The upward trend has been consistent for several years, and 2021 is sure to bring a further increase. Forecasts indicate that in 2023 the value of the game market will exceed USD 200 billion.

The Warsaw Stock Exchange has strengthened its position as the world leader in the number of listed companies from the game development industry, even ahead of the stock exchanges in Japan and South Korea. The game market is becoming an increasingly promising area for investors, which can be seen in both the number and value of transactions. The segments of mobile games, distribution under a subscription model, and cloud gaming are gaining. At the same time, with so many titles available on the market, game marketing becomes more difficult and skilful community-building around a specific title becomes vital.

Recognising the importance of the game industry, last year we published the report “Law for game development,” which deals with specific legal issues in the production and publication of games. However, new legal challenges are emerging that must be faced by all stakeholders in the broader game industry. Therefore, we are starting another series of publications in which we will touch upon, among other topics, intellectual property law, labour law, personal data, and less-obvious aspects of criminal or regulatory law. We will also devote a lot of space to commercial issues that can be useful for game developers and investors alike.

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Posted on Categories creative industry

Likenesses in computer games: Real-life people

Sometimes, a character in a game evokes an association with a real person. This similarity may be intentional or accidental. To ensure they are on solid legal ground, game developers should obtain the consent of the actual person to use his or her image. Failure to do so can result in severe consequences. In this text, we will discuss the rules for using likenesses of real, living people.

What is a likeness?

A person’s likeness refers to someone’s image, recorded for example in a drawing, painting or photograph, as well as the way a person is perceived and portrayed. Contrary to popular belief, likeness does not refer only to an image of a person’s face. It encompasses a range of personal characteristics, including natural features (e.g. eye shape), elements of characterisation or clothing (e.g. glasses, hairstyle, makeup, accessories), and even voice, deportment, behaviour, gestures or characteristic sayings. Thus, the likeness of a person is constructed of his or her recognisable features, by which we distinguish this person from others. Do you recognise the people pictured below? Just in case, the answer is given in the footnote1.

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Posted on Categories data economy

Data and copyright

Is copyright a path to take to protect data? Can data be regarded as a result of creativity and, consequently, a protected work? Does the protection of a data filing system also include the data collected in it?

Non-personal data, in particular data collected or generated by machines, has great economic and scientific value. Increasingly, it is a key business asset, providing the basis for launching new goods and services. It helps improve methods of detecting and treating diseases, determine where to set up a wind farm or where to cut down trees so they do not interfere with power lines, and helps ease traffic congestion in cities.

Do entities collecting such data or creating algorithms that harvest data, e.g. from the internet, have rights to the data? Can such data be freely traded, e.g. sold or licensed?

This issue raises many unanswered questions. This article will address whether data is protected by copyright and, as a result, whether the data “owner” can use the instruments provided by the Polish Copyright Act to protect it against infringement by third parties.

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Posted on Categories data economy

New series: Data economy

We are launching a series of articles on the data economy. We use this term to refer collectively to new models of the economy in which the principal role is played by data. Data are becoming an asset in their own right which is more and more often the subject of commercial exchange. This doesn’t mean only personal data. It also, or even primarily, means non-personal data of all sorts, including those generated or gathered by machines, whose value we are only beginning to discover.

We were spurred to develop a series of texts on this topic by the more and more frequently encountered question “Who owns data?” We hear this from clients, tech firms, and startups. Under the surface of this seemingly trivial question lurks the essence of the legal challenges connected with the data economy. It turns out that the legal status of data is not always obvious and it cannot easily be determined who owns data or what is the substance of rights to data.

We would like to expose some sensitive areas where the law does not yield the desired answers to fundamental questions about the rules of the data economy. Along the way, we will attempt to systematise the existing regulations, to determine to what extent they could apply to data.

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Posted on Categories creative industry

The name of the game: Video game titles and trademark protection

Sometimes a video game’s title is one of the game development company’s most important assets. Properly selected, secured and promoted, it may constitute a valuable source of income for a long time. Therefore, at an early stage of work on the game, it is worth making an appropriate application to the register, bearing in mind that in the case of trademarks, the principle of “first come, first served” applies. A well-thought-out strategy for selecting and registering a video game title can also save a lot of nerves and money after the game is launched on the market.

Trademark clearance: How to check if a game title is registrable and can be used safely

Trademark clearance should precede not only an application for registration of a game title as a trademark, but indeed the very choice of the intended title (even if the developer ultimately decides not to register it). Trademark clearance is research to determine whether the same or a similar title has already been registered as a trademark or is being used by an entity from the same or a similar sector for identical or similar goods or services. This research is usually carried out using professional trademark databases.

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Posted on Categories creative industry

In-game advertising: How to play it?

The trend toward advertising in online channels has grown for years, but video games are still not a popular ad platform. While large foreign entities are eager to exploit this opportunity (among game publishers such as Electronic Arts and brands like adidas, Coca-Cola and Daimler), it is harder to find examples of this type of cooperation among Polish entities.

This may be due partly to the independent nature of Polish game productions and because they rarely set their games in realistic spaces (where it is generally easier to place ads). On the other hand, many advertisers seem unaware of this form of advertising, and many publishers don’t seem familiar with this possibility for financing games.

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