creative industry - legal aspects of new technologies

The game development industry knows no boundaries, and often attracts workers from all over the world. But employment and immigration regulations pose a barrier to drawing on the resources of the global labour market, particularly when a game development studio considers employing persons in Poland who are citizens of countries outside the EU, the EEA, or Switzerland. However, new non-standard forms of work help overcome the difficulties in hiring foreigners, and are worth considering for roles such as programmers, graphic designers, sound engineers, script writers, and game testers.

Video game designers often place the narrative of their games in contemporary or historical times. This requires them to base elements in the game on items familiar from the real world, such as vehicles, clothing, jewellery, weapons, foods and electronics. Can such depictions be freely used in games, or is consent required?

This is a  crucial business question, and a mistake can generate significant legal risks for a game’s producer and publisher. It includes the risk of claims by owners of rights to depicted items, as well as contractual risks arising out agreements between producer and publisher, or distributor and console manufacturer (in various configurations, depending on the business model). The risk grows for AAA titles generating high sales all around the world. This situation is not helped by the major differences between the legal systems in the largest video game markets (the US, China, Japan, South Korea, Western Europe).

The video game development sector has grown rapidly in recent years. With the spread of smartphones, new business models, and distribution platforms, the market for video games has taken off, becoming a key sector of the creative industry. Its growth stirs the imagination and appetite not only of game producers and publishers, but also of the biggest companies in sectors like IT and film, who are increasingly oriented toward the game market. It is also a promising field for investors, particularly from Asia. The industry’s growth has not even been slowed by the COVID-19 pandemic. To the contrary, the industry has taken advantage of this time to reinforce its position and achieve new growth.

The competitiveness of the video game market is also growing, and smaller producers and publishers must compete with global giants. This is not discouraging Polish producers and publishers. In addition to the largest studios, smaller but equally ambitious ones continue to spring up in Poland, with backing from various programmes and accelerators.

Are computer games still
a niche product, or have they entered the mainstream? The possibility of
registering a trademark similar to an earlier mark turns on this issue.

Kalypso Media Group GmbH v EUIPO, Case T‑700/18
(judgment of the General Court of 10 October 2019)

The computer game
industry is one of the fastest-growing sectors of the economy, in Poland as elsewhere.
Dynamic growth carries the risk of disputes affecting various aspects
of gaming.

A case recently reached the docket of the General Court (a division of the Court of Justice of the European Union) concerning the application for registration of an EU trademark for the word sign DUNGEONS by Kalypso Media Group GmbH. The application was opposed by Wizards of the Coast LLC, proprietor of the earlier EU word mark DUNGEONS & DRAGONS. The European Union Intellectual Property Office upheld the opposition and denied registration of DUNGEONS, finding that there was a likelihood of confusion with the earlier mark DUNGEONS & DRAGONS.

Some time ago, Burger King announced that it was offering a mobile application allowing users to “burn” competing fast-food ads. By directing the device’s camera to a billboard, flyer or coupon showing the “right” competing logo, a smartphone user activates an augmented reality image of flames burning the competitor’s logo on the phone screen. In exchange for burning the competitor’s logo, the app generates a code entitling the user to receive a free sandwich at the Burger King chain. The launch of the app was supported by a promotional campaign, and a promotional video showing the operation of the app can be viewed online.

The third post-hackathon interview: After InteliLex and DoxyChain, it’s time for bSure, the team that took third place in the Polish phase of the Global Legal Hackathon.

Justyna Zandberg-Malec: During the hackathon you worked on an application that points out to freelancers contractual provisions that are disadvantageous to them. Where did you get this idea?

Sabina Łobocka: A colleague who wasn’t taking part in the hackathon suggested it to me (and allowed us to use it). He was signing a contract with a residential real estate developer and didn’t entirely understand all the clauses. It took him a long time to check whether any of the clauses were unfavourable to him. That’s why we thought of an application that ordinary people could use to protect against irregularities and negative legal consequences for them.