creative industry - legal aspects of new technologies

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.

When the concept for a video game takes shape, and an unprotected idea becomes a protected form of expression, the developer can consider how best to protect the game or elements of the game against copying by competitors. When thinking about legal protection of a video game, it is natural to refer to copyright law. But that is not the only potential source of protection. It is worth examining whether and to what extent elements of the game can be protected through industrial designs, patents, or perhaps trade secrets.

This is one of the most often asked questions. The answer is difficult and equivocal. On one hand, a good idea is half the way to success. On the other hand, ideas are regarded as free and should not be monopolised, but a specific manner or form of expression of an idea can be the subject of copyright protection. However, drawing the line between an unprotected idea and a protected manner of expression is a  difficult challenge that depends on the specific factual circumstances. First it must be determined what can be protected in a computer game, and then how these elements can best be protected.

Contracts for publication of video games are concluded between game developers and companies specialising in publishing games (sometimes referred to “dev-publisher agreements”).

Just a few years ago, the word in the
video game industry was that the role of publishers in the process of
commercialising new games was on the way out, and the future of the industry
was in self-publishing of games by developers. But publishers have not gone
away, and still represent a hugely important element of the operation of the
entire industry. For game developers, contracts with publishers are one of
their key business relationships. The publisher typically provides not only
services and knowhow in marketing and distribution of games, but also serves as
a fundamental source for financing game development.

So as a developer, it is vital to consider the nature of cooperation with a publisher, and first and foremost what to pay attention to when negotiating the contract with the publisher.

Game jams, hackathons and competitions are
some of the methods for activating and engaging the game development community
(as demonstrated for example by the popularity of Poland’s nationwide online
game jam #zostanwdomurobgry, held
by the Indie Games Polska Foundation on 30 March – 6 April 2020 under the
aegis of the Ministry of Culture and National Heritage and the Ministry of
Science and Higher Education). Organising and promoting a competition is relatively
uncomplicated. There are benefits on both sides. The participants have an opportunity
to present their work, and the organiser gains access to a range of creative
proposals. But such competitions pose copyright challenges, as we discuss below.

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.